John D. Lee Case File

and then severely was such of them instantly die from said wounds received so as aforesaid in manner with guns unknown And the persons so as aforesaid upon their oath aforesaid [do?] that [UNREADABLE, DAMAGED] John M. H-- --eorge Adair, Junior Elliot Wilden Samuel [unreadable] Indians. Then and there and said [unreadable] company of fifty persons last aforesaw whose names are noted persons unknown and also the said John Smith with manner as by the means such aforesaid feloneously wilfully premeditated by deliberate and of malice of cutting did severally kill and murder - All of which is contrary with statute of Utah Territory in such case made any provided and against the dignity and peace of the People of said Territory. Donald S. Liddle Foreman William Carey Attorney for the United States for Utah Territory Assistant United States Attorney for the Second Judicial District of Utah Territory

Page Line 3 1 taken, to each and all of said rulings 2 the defendant then and there excepted. 3 The original entry upon the Clerks Journal 4 and minutes for the 24th day of September AD 1874 5 which refer to the indictment herein-were 6 as follows, 7 (Here insert original entry8 To correct the above entry. The prosecution 9 requested and moved the Court on the 21st day 10 of July AD 1875, to cause the following 11 to be entered Nunc pro tunc. as a correction 12 of the said original entry. made on the 24th 13 day of September AD 1874, as aforesaid-- 14 (Here insert the Order of the Court of July 15 21st AD 1875 correcting said minutes) 16 The Court granted the Motion and 17 caused to be then and there filed the said proposed 18 amendments to said original entry- and 19 then and there ordered the same to stand for and 20 instead of said original Journal Entry and 21 Clerks minutes. relating to the filing and presenting of said 22 indictment-- To all of which rulings 23 the defendant then and there excepted-- 24 The Defendant was then ordered to plead 25 to said indictment- and plead not guilty. 26 The Cause was then tried and resulted in 27 a disagreement of the Jury empanneled and 28 sworn to try said Cause-- Whereupon said Cause 29. was continued for future action-

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which instructions were as follows,

(Here insert defendants instructions refused.)

The Court refused to give the said instructions - to which refusal the defendant then and there excepted -

The Court at the request of the Counsel for the prosecution gave the following instructions -

(Here insert all instructions marked "given" as presented by prosecution)

To the giving of each and every of said instructions the defendant then and there excepted -

The Court then upon its own motion instructed the Jury as follows -

(Here insert Charge and instructions of the Judge -

To the giving of which and every part thereof the defendant then and there excepted -

The offices of the Court were then sworn and the Jury placed in their charge and reitred to deliberate upon their verdict -

After due deliberation the said Jury returned into Court and submitted the following as their verdict in the said cause -

(Here insert verdict -)

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Wherefore by reason of the law and the premises the Defendant moves the Court for an arrest of Judgement and for a new trial herein -

Upon the following grounds - to wit =

First

Because the Court erred in sustaining the demurrer to the first and second pleas of defendant - made to the indictment herein - The said demurrer not being well taken -

Second

The Court erred in sustaining the replication of prosecution to the third Plea of defendant and in refusing to sustain the traverse of defendant to said replication because said Plea was true and well pleaded and said replication was untrue and not supported by evidence - and There being no evidence introduced in relation thereto for the Court to act upon it erred in making any ruling upon the same in the absence of testimony.

Third

The Court erred in amending the minutes of the Court relating to the presenting and filing of the indictment herein - Because the minutes had been made at a former term of said Court and the Court had lost all jurisdictions after them -

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by reason of the expiration of the term at which said minutes and entries were made and without such minutes there was no legal indictment before the Court upon which the said defendant could be tried.

Fourth

The Court erred in overruling the motion made by defendant to quash and dismiss, and discontinue all further proceedings in this case - and discharge the defendant because the Statute under which the alleged crime had been committed and the indictment in this case [found?] had been repealed prior to the commencement of the said trial herein - and because the court cannot pronounce Sentence of death upon the defendant as provided in the Statute in force at the time of finding the indictment herein and the Statute which went into force on the 4th day of March AD 1876 and is still in force, while it provides that the punishment for murder in the first degree shall be death - it neither provides that the party convicted shall be shot beheaded or hung or in any other manner put to death - and provides no way for carry up the Sentence