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Facts of the Case
Failure of Identification
Testimony Wholly Insufficient to Support the Verdict
Error in Admitting Expert Testimony
Defendant Without Counsel

There is absolute,
FAILURE OF IDENTIFICATION,
NO MOTIVE SHOWN,
NO EVIDENCE TO SUPPORT THE VERDICT,
And a complete disregard of those safeguards that at least tend to prevent an innocent man from being punished for the party actually guilty of the charge.

It is at such a time that the defendant realizes the protective power of the Supreme Court that, removed from the strife and contention of the court trial, can judicially and impartially declare and weigh the evidence in accordance with those principles that assure the defendant that his life shall not be taken from him in utter disregard of his constitutional rights and in a case where the defendant has been denied due process of law - that fair and impartial hearing of his cause guaranteed to him by the laws of his state.

Facts of the Case:

In and by the information, Joseph Hillstrom, the defendant, was charged with the murder of J.G. Morrison, at Salt Lake County, Utah, on January 10, 1914, by shooting the deceased with a revolver. That on the date mentioned, two men disguised with "red handkerchiefs tied around their faces," entered the store of the deceased, at about ten o'clock in the night, and exclaiming, "We've got you now" (Abs. 80), each man having a pistol in his hand, shot the deceased and at the same time killed the son, Arling Morrison, who, when his body was found, had a gun in his hand (Abs. 90).

Failure of Identification:

Under this head we desire to discuss assignments of error numbered 9, 10, 11, 12, 13, 14, 15, 16, 17, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 31 and 32, all of which go to the admission of improper evidence, the improper admission of exhibits with which the defendant was in no way connected, and the refusal of the court to strike such testimony from the record.

The objections made were timely, and it will be apparent, as the testimony is read, that the testimony offered was so disconnected, partook so much of conjecture and impression as to be worthless as a basis of proof.

Evidently the deceased had expected trouble, because Merlin Morrison, the younger son, says his father's revolver, which was kept in the ice box, "was loaded just before the men came in" (Abs. 86), and then in the following indefinite and uncertain manner proceeds to describe his impressions.

After the defendant was arrested, I saw him at the jail; his height "is the same as the man that fired the second shot at father;" could see the outlines of his body; defendant's size "compares just about the same as the man I saw;" he was slim; shape of head about the same (Abs. 92); couldn't tell his features because of handkerchief over his face; both men used the expression as they came into the store (Abs. 95), "we've got you now;" both used same words and spoke at same time; didn 't see the man's countenance nor the shape of his head; that it was a kind of guess with him; that he was excited and all his observations were made hurriedly....

The witness Carlson, who accompanied the witness Vance, said (Abs. 156) that there was some blood tracks and dog prints with blood drops that led to an old dairy house. It got so we could see where the dog had been going in the snow and dog tracks all over, in fact we found the dog that had a sore foot. We saw the blood in the dog's tracks, whether we concluded it was dog's blood or not. That they found no blood at the store, and the first he saw was on Eight South in the center of the street diagonally over to the alley. Witness Cleaveland recalled scraping up some of the bloody substance (Abs. 161), probably a teaspoonful. The blood spots were very bright, and others that did not look so bright. Chemist Herm Harms (Abs. 164) would only testify that the blood was of mamalian origin (Abs. 171).

Phoeboe Seeley (Abs. 177) was going home from the Empress Theatre; at Jefferson Street met two men going east (Abs. 182) on Eighth South, coming shoulder to shoulder, and were crowded off the walk; "one was slightly taller than the other," and the taller turned around, directing his gaze to witness (Abs. 183), and noticed red handkerchief on taller man's neck; his face was real thin; he had a sharp nose and large nostrils (Abs. 185) and a "defection" on the side of his face. This man (noticing the defendant) has a real sharp nose and his nostrils were large. I have seen the defendant standing, and the height of the defendant is "the same as the man that turned and looked at me" (Abs. 188).

At this point, with no counsel to guide him, the prosecuting attorney takes every possible advantage and puts in the mouth of the Seeley woman these words:

"Q. How does the nose of Mr. Hillstrom compare with the nose of the man you looked at there?
A. Very much the same.
Q. Have you had an opportunity of observing his neck and face since he has been in custody?
A. Not until just now.
Q. How do the marks, especially on the left hand side of his face and neck, that you have had an opportunity to observe, correspond with the marks on the man that you saw there at that time?
A. Well, they look 'a great deal alike' to me as on the same man that I saw.
Q. You simply say there was a scar, as I understood you to say, the man had scars on his neck?
A. Yes, he had what I call a defection in his face."

Was there ever a more flagrant disregard of the rights of a defendant than this third degree procedure, at the time when the defendant was sitting, helpless, without counsel, and not knowing when to object nor what to do, and the court letting the district attorney tell the witness what he wanted to get from her.

The witness, on examining the hat, exhibit 5 (Abs. 195), said it looked very much like "the hat that the man had on, and the handkerchief was red. That the coat, exhibit 6, didn't hardly seem like the coat; that the coat was lighter."

Here the court questions the witness (Abs. 199):

"Q. How does Mr. Hillstrom, as he sits here, compare in regard to his thinness with the man you saw that day?
A. His thinness is about the same, but his hair -
Just about as thin, had you finished your answer?
A. But his hair is entirely different.
How does he compare in thinness of the body wit the man you saw that day?
A. I never paid any particular attention.
You did not pay any attention to the thinness of his body, but the thinness of his face is just the same as the man you saw?
A. Just the same.
You say his hair is different?
A. Yes, sir.
In what respect is his different?
A. His hair has been cut.
What?
A. His hair was bushy. The man I saw his hair was long and was real fluffy at the side of his hat."

Now, if this was not taken from the record of the case, if it had been related by word of mouth that any such suggestion and invitation of comparison and a searching of the witness's memory to invite her to say that Hillstrom was the man "who turned and looked at her," the party making the statement would have seriously invited the conclusion that it was forced from a witness who knew nothing of the facts. And yet upon this very vague, shadowy pretense of testimony, the defendant is convicted.

Later on, the same witness admits an honest doubt as to the identity of the man who stopped "and looked around at her" being the defendant (Abs. 204), saying:

At the preliminary hearing you were asked this question, and did you answer:

"Q. You want the court to understand you have an honest doubt as to the identity of this man and the one that was on Eighth Street, is that correct?
A. Yes.
Did you so testify?
A. Yes.
To show how completely this witness failed of any identification we will ask the court to read from 205 of the abstract to 217 inclusive, and on that reading, we will say to this court that the thoughtless, loose, flippant talk of this witness was such as ought to have compelled the trial court to order it stricken from the record.

Margaret E. Davis (Abs. 220) passed in front of Morrison's store, saw it lighted, saw "two gentlemen" on the northeast corner across from the store, standing still, and as she continued towards the store the men started across the street, walking west; that she passed the men standing on the corner, and as she got in the light (Abs. 224) they moved over by the poles on the corner. I saw the two gentlemen and was frightened of them; I noticed the general appearance. I thought one of them had a red sweater around his neck. One was "taller than the other" (Abs. 227); tall, thin man, slender, that is all she could say about him. Has seen the defendant in the hall of the court house; his height "corresponds very much with the height" of the taller of the two men I saw by the poles. At first the men had their faces in my direction, coming across the street (Abs. 227), but I was where I could not see them. As I turned from Morrison's store they were still near the two poles. I did not see them again; did not get a better view of one than the other. I think I could recognize the shorter of the two men if I could see his picture. I distinguished what seemed to be a red sweater; it was light; I saw nothing else red; if there had been I would have observed it, but I did not (Abs. 230); far as face and features were concerned, I took no particular note. One man (Abs. 231) had a cap; the other, a slouch hat; don't remember the colors. I have forgotten which wore the cap, "but I am quite sure it was the taller of the two."

Mrs. Lucy Williams (Abs. 268) was, on the night of January 10, 1914, about ten o'clock, sitting in her parlor, fronting on Jefferson street; attention was attracted by moaning; noise appeared to come right across the street; heard a cough like clearing the throat; did not look out nor make personal investigation. Next morning went across the street; saw a patch of blood that looked like it had been spit. Was foamy; was not a bit red.

Mrs. Vera Hansen (Abs. 275) lived directly opposite Morrison's store; was home on the evening of January 10; heard a loud noise like shots. Looked out (Abs. 275), saw a man stepping out of the door of the store; I ran out on the walk; watched the man, and he said "Oh, Bob," loud enough so I could hear it across the street; it sounded full of pain; had his hands drawn up and slightly stooped....

Thomas Higgs is produced. He was at the Morrison store (Abs. 416), picked up the revolver. One cartridge had been fired. "I smelled of it and it smelled the fresh smell of powder."

On being recalled, Dr. McHugh testified that there would be tendency to hemorrhage or to cough (Abs. 421)

We have here set out fully all the facts that can be gleaned from the evidence. This is the state's entire case.

At this point there was not a scintilla of evidence that in any way connect the defendant with the crime. The facts placed against each other are as follows:

There was an attempt made to hold up Mr. Morrison September 20th. That on the night of January 10, 1914, he loaded his revolver, placed it in the ice box near at hand. That about ten o'clock that night, two men, with red handkerchiefs on their faces, came into the store exclaiming "We've got you now," and commenced shooting. That Arling Morrison evidently got the gun and fired one shot from it.

That the defendant "looked like the man who ran from the store who was tall and thin." That the defendant was suffering from a gunshot wound.

Morrison prepared that night against known enemies. The defendant had never seen nor known Morrison, the deceased. ....

The officers came frequently, and one morning got a coat (Abs. 455), and then asked for a gun, asserting that the defendant said he had given it to Mrs. Olsen (Abs. 455).

While these officers are attempting to make a case, Mrs. Olsen is asked what was said about the gun (Abs. 457). This was proper for her to reply to, but the court holds that it is immaterial, and a great deal of light on this fact is denied to the defendant. The state had covered every possible ground of conjecture, and the evidence offered by the defendant was proper to explain what was said about the gun by the officers, representing the state (Abs. 457).

The court here makes the highly improper remark "that it would be remarkable if the state would be bound by every vagrant remark or act every executive officer might do or say," when as a matter of fact it was the essence of the defendant's case to show what they did say, and why they said it, and in denying the right to the defendant to show his side of the circumstances, he was denied a substantive and a valuable right. The testimony was relevant under all the authorities.

The defendant then offers to show by Lester Wire that it is the custom among police officers to load with five cartridges and leave the sixth empty for the hammer to rest upon (Abs. 482).

This was offered to rebut the inference, from the fact that one chamber in Morrison's revolver was found empty, that it had been fired at the hold-ups by Arling Morrison. The state laid great stress on the fact that Morrison's revolver, which had been loaded and placed in the ice box, was found to have one empty cartridge, and it was sought to trace this cartridge to the wound suffered by Hillstrom. It was proper for the defendant to show that the revolver had never been fired; that Mr. Morrison had been connected with the police force and would naturally follow the custom of loading five shells and leaving the sixth empty.

This then denied to the defendant the right to show that the empty chamber in the Morrison revolver was there by intent, and that the empty chamber was not because the gun had been fired.

It was then sought to show by Hardy K. Downing (Abs. 485) that on the 20th of September there was an attempt to hold up Mr. Morrison and that the witness had called upon him and talked it over, and that Mr. Morrison had stated to the witness (Abs. 485) that the attack on him was not for the purpose of a holdup, but an attempt to kill him, and that he knew who the parties were (Abs. 486).

It is testimony by Merlin Morrison that the first thing, the gun was loaded in the evening before the men came in; that it was placed in the ice box in the upper part of the ice box, the door being off; that the first words he heard from both of them, "We've got you now," and the shooting began. Had the witness Downing been permitted to testify to the facts communicated to him, there is no question but it would have shown who Morrison feared and why he feared them, and why he took the precautions that he did.

This right was denied to the defendant (Abs. 487.) ..... The defendant calls M.F. Beer, a physician (Abs. 527), that he had seen a number of experiments as to the effects of bullets on the human body; that he examined Hillstrom on June 10, 1914, and found where a bullet or hard substance had penetrated his body, and another scar where some instrument had entered or left the body, and as to the relative position of the holes in the coat and in the body, that the scar said to be the bullet hole was four inches higher, and when defendant's hands were raised at extreme length over his head, and he was in an erect position, that the hole in the coat exactly corresponded with the hole in the body (Abs. 534).

It was then sought to ask this question:

"Q. Would you then say, doctor, that it was possible for the bullet to have struck him with his arms in any other position than directly over his head and himself in a perpendicular position?"

It was objected to and sustained.

This certainly was error - there may have been some criticism of the question as leading, but in a matter of this importance, the defendant should not have been bound by quibbles and technicalities as to the nicety of the phraseology of the question.

The witness continued that the hole in the back (of the coat) corresponded with the wound in the back of the defendant's body with his hands in an erect position. ....

Carl A. Carlson, for the defendant, testified that they were looking for Frank Z. Wilson. The general appearance of Wilson is not the same as the general appearance of the defendant. It came to witness' attention that an abandoned automobile was found at the corner of Fourteenth South and the D.& R. G. crossing that night. Heard this a day or so after the shooting. That when he went down the machine was gone.

This was all the testimony.

Testimony Wholly Insufficient to Support the Verdict

As in the Hill case, the testimony is wholly insufficient to support the verdict. At the close of the testimony there was not even a suspicious circumstance left, not a thing to connect the defendant with the case.

The rule always is that

"If there be a verdict of guilty in a capital case, and the court have strong doubts whether the testimony supports the verdict, a motion for a new trial should be sustained."

Jerry vs. State, 1 Blackford (Ind.) 395
Allen vs. State, ------ 40 So. 744......

Taller of the two might have been or looked like the defendant, having had no previous acquaintance with them, and never having seen them before, might have been mistaken in their identity; and those who saw a man running across the street had less opportunity of observing them and were still more likely to be mistaken. On the other hand, the witnesses who had seen a wounded man late at night were no more likely to be mistaken than the others and they positively say that the defendant was not the man they saw. We think that safety and justice require that the cause should be again tried."

William Lincoln vs. People, 20 Ill. 367.

It is clear, then, that the court should have carefully weighed this evidence, and when it was so incomplete as to be open to serious question, he should have granted the motion for a new trial, and a failure to do so is, in our view, prejudicial and reversible error.

Error in Admitting Expert Testimony

We now come to other serious errors, and this is in permitting matters of fact, matters of common knowledge, to go before the jury, with the force of what is loosely termed "expert" evidence. This is comprehended under assignments Nos. 7 and 8 as to the testimony of Doctor Sprague, and under No. 30, as to the testimony of Higgs, as to the condition of the gun. ...

Direction, was a fact to be found by the jury from the evidence of the circumstances in which the homicide was committed, or to be inferred from the relative position of the parties at the time the shot was fired; it was not such a matter of science or skill as required the opinion of an expert. People vs. Smith, 4 Pac. C.L.J. 213'"

People vs. Westlake, 62 Calif. 303 (309).

Dr. Sprague had no right to pass upon the question of the size of bullet not the calibre of the gun with which the shooting was alleged to have been done. His duty was finished when he stated the wounds, their nature and size.

The harm done was this: It was sought to show that the bullet that killed Mr. Morrison was a 38; it sought to show that the defendant's gun was a 38. Now, to allow Dr. Sprague to pass upon the size of the bullet and the kind of a gun, was to add "expert" testimony and so force the jury to conclude that if Dr. Sprague said, from the nature of the would, it was a 38 bullet, it would be conclusive with them.

And these observations are especially applicable to the testimony of Thomas Higgs that he had "smelled the revolver and it smelled fresh, the fresh smell of powder" (Abs. 416). This is directly contradicted by the man who did have experience, Emerson John Miller (Abs. 487), who very truly said that no one was competent to tell when a revolver was fired. ...

Certainly a man whose father had been killed would have a prejudice against any person accused of a like crime, in spite of all protestations of fairness, and when this matter appeared, it was the duty of the court to sustain a challenge for cause as set out in 4834, for it is clear that having "a small opinion" and also having his own family the death of his father by the same means as that of Mr. Morrison, it would be mentally impossible for a person, having passed through such experience to have heard the case fairly and impartially. His own experience would always rise up and persuade him to resolve every circumstance against the defendant.

Defendant Without Counsel

Exceptions 18 and 19 go to the fact that the defendant was without counsel, contrary to the provisions of the constitution contrary to the provisions of Art. I, Sec. 12, of the constitution and of Sec. 4513 of the Compiled Laws of 1907.

"The defendant (Abs. 171): May I say a few words, Your Honor?

The Court: You have the right to be heard in your behalf ordinarily.

The defendant: I have discovered that I have three prosecuting attorneys here. I intend to get rid of two of them, Mr. Scott and Mr. McDougal. Will you stay over there, you are fired too, see, and there is something I don't understand -

The Court: Mr. Hillstrom, you need not carry out in detail any difference you may have had with your counsel if there is any -

The defendant: I wish to announce that I have discharged my counsel, my two lawyers."

His counsel then announced that if they were discharged that was there was to it, and the defendant said:

"If the court will permit, I will act as my own attorney, and cross-examine all the witnesses, and I think I will make a good job of it, etc.

The Court: I think until the further order of court, counsel who have been representing the defendant may proceed, etc.

The defendant: Haven't I right to discharge my own counsel?

The Court: The court will make due inquiry into that, Mr. Hillstrom, and if the court is convinced that you really mean what you say, the court will accord you that right.

The defendant: Yes, sir; I mean what I say.

The Court: At present counsel may proceed, etc.

The defendant: Without my permission?

The Court: We will see that the orders of court are carried out.

The defendant: I am the defendant in this court.

The Court: The court directs you to sit down now. The court will give you an opportunity if you want to cross-examine this witness, after counsel who have been representing you have completed."

The case then proceed a little further, when the following occurred:

"The Court: I wish to say to both counsel who have been representing the defendant that the court requests you to remain, for the present at least, and take such part in the trial as may seem advisable. The court will accord to the defendant the right to examine and cross-examine the witnesses himself. It is a constitutional right."

And again:

"The Court: I think the request of the defendant justifies the court in requesting counsel to remain at least until the further order of the court. They will at least have the status of amicii curiae if nothing more. The court requests you to use your best efforts for the protection of the defendant's interests, and the court will also accord to the defendant the right to cross-examine the witnesses or examine the witnesses or take any part in the trial that the defendant may under the constitution. (Abs. 176).