29 P. 38 | Idaho | 1892
The three defendants were indicted for the murder of David Stoddard. Defendant O’Brien not having been apprehended, defendants Mike and Bestone were tried before the court and a jury. The jury found the two defendants guilty of murder in the second degree, and they were sentenced to ten years each in the penitentiary. The defendants appeal from this judgment and from the order overruling the motion for a new trial. The following errors are assigned: First, the giving of the following instruction, viz.: “If the jury believe from all the evidence, beyond a reasonable doubt, that it was understood by and between the defendants and said O’Brien, after said O’Brien had been struck by Stoddard, if the jury believe that he was so struck by Stoddard, that the defendants at bar should watch Stoddard, and prevent his leaving the saloon, or detain him while on his way from said saloon, and thus enable said O’Brien to provide himself with a weapon, and give him an opportunity to kill Stoddard, or inflict serious bodily injury on him, and that in pursuance of said understanding or agreement the defendants did stop Stoddard after he left the saloon, and detain him, and thereby gave O’Brien an opportunity to kill him, the jury should find the defendants, or whichever of them did so act, guilty of murder.” The defendants object to this instruction, on the ground that there is no evidence tending to prove that defendants, or either of them, stopped Stoddard on the street.
B. W. Nelson swears: “I was at Beaver Canyon, and was running the work train on the 24th of August last. Knew
W. H. Bassett swears that he heard of the trouble, and went into Burnside’s. "I saw two Italians in front of the store talk
Ponlsen swears that he knew O’Brien and these two defendants. They were all Italians. Saw them in the saloon. Heard O’Brien’s insulting remark to Stoddard, and saw Stoddard strike him. After this O’Brien went and talked to these two in their own language. They were by the door, and talked in a low tone, and were close together, and then went away. In about ten minutes O’Brien came back, and had something in his hand, shining. He came in, looked around, and then went out. I heard no noise, but some one came -in and said Stoddard was bleeding to death. The testimony of one of the brakemen was to the same effect.
The defendant Bestone was sworn in his own behalf and that of the other defendant, and testifies that they did not talk to O’Brien at the door of the saloon. States that they left the saloon, and did not stop to talk to anybody. Went down and went to bed. States that when they left O’Brien was in the saloon, talking to some one; that they did not shake hands with Stoddard.
What took place in the saloon, and the conversation at the door between the three Italians, was sworn to by four witnesses. It is unquestionably true. Yet Bestone denied it positively on two occasions, and denied shaking hands with Stoddard and stated that they did not talk to O’Brien in the saloon nor outside the saloon. Never saw him again that night. “We talked to no one except Nelson after we left the saloon.” Did not talk with Stoddard, and repeats that he shook hands with Nelson, no one else. It is evident that these two defendants and O’Brien talked together at the door of the saloon just after O’Brien was struck; that O’Brien left the saloon at the ■same time they did; that he went for the razor, and these two went up the sidewalk the other way, and stayed ten to twenty minutes, lingering about, and did not come back toward the saloon until Stoddard came out to go home; that they then met him, and had some conversation with him, and shook hands with him twice — every circumstance of which was denied positively by the defendants at each of the two trials. The •excuse is made that they could not talk English well, but one