Show ALIBI DEFENDANT IS discharged ON THE CHARGE OF THE ATROCIOUS CRIME COMMITTED ON MARY I 1 in deciding the case the judge revley the testimony and takes occasion to give ilia opinion on the scope of the court question which was brought up in this case and has seen recently in the district court in the municipal court this afternoon franklin stanger charged with attempted rape on the person of mary marriott at harrietts Harri otts settlement some daya ago was discharged it being held that an alibi had been proven judge W L maginnis was the attorney for the defendant and county attorney Hu laniski prosecuted in delivering bis opinion judge biowell reviewed the case as follows it is conceded by all parties concerned that the atrocious crime charged in the complaint was unquestionably committed and the only question is whether there is sufficient cause to believe the defendant guilty of it the testimony on the of the state can be briefly summarized the defendant answers the description in person and attire of her assailant given I 1 by mary marriott in a number of particulars tic ulars none of hem however particularly ticul arly characteristic he is a beardless jouthas you thas wasso she haysher say sher assailant sa ilant he has large wrists the backs of hi hands are freckled and he has light hair on his neck all of which her assailant had so she says he wore on the day the crime was committed a 1 dark vest a black and white shirt overalls but whether there were holes in both knees or only in one is not certain and shoes that arc pointed the meaning of which apparently is that they are not brigans brogans br this clothing corresponds fairly well with the description given by mary marriott of that of her assailant in other particulars franklin stanger does not correspond with the description given of the assailant he is not of tho height given nor is he short and chunky but is on the contrary slender tho fact that he partially answers the description of the person who committed the assault the state relies on the fact that two boye thaddeus miller and stuart marriott ages respectively eleven and seventeen testify saw the defendant going in the direction of the scene of the crime a short it happened state in addition upon the fact that the defendants shoes resemble in shape the tracks near the dump of willows where the crime is alleged to have taken place but the test was made so long after the tracks were made that it is impossible to tell whether they arc the pame in pi or not and there id nothing peculiar about the shape Ite liance is n the fact that the defendant made about the clothing he wore on the day the crime was committed which he afterwards retracted tr but how many men much less boye could tell off hand what clothes they wore three weeks before the state aleo considers it an important item that hie defendant was unable to tell with whom he rode home on the day in question though he afterwards discovered it was with his own uncle but this is not so damaging for a boy of fifteen alio had as joany relatives as this boy apparently has if the slates case stood alone then consisting as it does of this that the defendant partially answers the description given by the assaulted girl of her assailant anil that two boys testify that he was in the vicinity ot the crime a time before it was committed I 1 should have a great deal of hesitancy in finding that there ie sufficient evidence to warrant the case going to a jury but it seems to me that not only is the evidence against the defendant extremely weak but the evidence in behalf of the defendant the states case is particularly fc trong he has it seems to me a pretty complete alibi it U impossible to fix precisely the time ft lien the crime wag committed because were consulted by so few of the on that day but thil much is certain that it took place between sundown and dark the witnesses for the defence differ as to the precise time when the defendant arrived home that night but tho defendant himself ilia father mother jeene slater and brother henry eakin janie slater priscilla covington Covin glon and kate quirk all say it wae before sundown and that he remained ht or around home all evening which latter statement li corroborated by several other witnesses of these witnesses there are apparently three who are not relatives but it docs not to me that the testimony of the should on account of their relationship tion ship be disregarded it is rue that nearly all the witnesses for the state are of mary marriott and nearly all the witnesses for the defense are relatives of franklin stanger but all arn substantial citizen of the community and though their testimony may be colored by their interest I 1 violit believe they would any of them intentionally horar falsely it is true eliat the testimony ten of famce JIo witt chiarle Cli arle and W marriott ROM to how that aekins and david st an gerthe defendants defend anta father nay have heair tnie taken ns to the time aln y arrived home but that in vo way contradict that of ant iha mother and brother and mere than thai llie two girl attlio u that tried to their wheel before bundow n any person who can by the testimony of two such frank and apparently disinterested as these two twirls establish the fact that when accused of being in ft achain place wa as a matter of fact elsewhere ha established about as complete an alibi ae can tx expected considering all the evidence and having gone over ife all twice in the light of the principle I 1 have stated J am constrained to find that there a not sufficient cause to believe the defendant cuilla ot the crime charged in U corn plaint and I 1 therefore order that he be and hie bail exonerated in introducing his opinion judge howell on the ques iton as to jusli bhatla the ecjpe of action of a committing magistrate which had been rai this and al lebed toTi ave Jb abma MA the District court he cited the sec wf 4 sa reads ae follows it after hearing the proofs it appears that either no public been or that there Is not sufficient cause to believe the defendant guilty of a public offense the magistrate roust order the defendant to bo discharged etc sec following reads as follows if however it appears from the examination that a pu lie offense has been committed and that th at there is sufficient cause to believe ahe defendant guilty thereof then the magistrate must hold him to answer the same i in other words said the judge to hold the defendant to answer the magistrate must he absolutely certain that afie crime ha been committed but the connection of tho defendant with the crime need bot be shown with the same certainty it is enouf that there is sufficient cause to believe him guilty it is ot course clear that n deciding the second question nearly always the most difficult of the two the committing magistrate should not take an extreme position either way the prosecuting officer ought not to expect him to hold to answer every persan against whom he sees fit to have warrants issued else there conid be no bense in the committing magistrate existing aa wal be fulcd in the district court without any preliminary crimination the defendant on the other hand ought not to affe the committing magistrate to weigh nicely conflicting testimony because that is the function of the trial jury not the committing magistrate x clearly midway lie the magistrates true course this question he should ask himself bo you consider that there is sufficient evidence to warrant this going to a jurat it is the same question that a trial judge mus ask himself in deciding a motion for a nonsuit stating it in another way the question is not whether the committing magistrate acting as a juryman would convict the defendant of the testimony but whether he can say as a man supposedly experienced in such matters anat any reasonable jury could convict the efe on the evidence produced his altitude from this point of view should be to that of a trial judge in deriding whether to set aside the verdict of a jury or not |