The following excerpts have been taken from the able argument of Judge Hilton before the Utah Supreme Court. Joe Hill will be executed on October 1 unless enough pressure is brought to bear on the governor to stay the execution. Every REVIEW reader should write at once to Governor Spry, Salt Lake City, Utah, denouncing the infamous procedure of the courts in this case, and demanding that Joe Hill be given clemency. Do it now.
THE young man in this information named as the defendant was convicted, as the record discloses, of murder in the first degree and sentenced to be shot. He is of more than ordinary culture and intelligence, converses fluently and well, although English is not his native speech; has never in his life been convicted of a criminal offense, not even a misdemeanor; without a single vicious or bad habit, not even that of using tobacco, bright, clean in mind and alert of body he stands now in this court, as he did before the jury which condemned him, entitled to every gracious right and privilege vouchsafed him by the constitution and laws of this state, which, as I assert, were for the most part wholly denied him on trial, and a conviction obtained which shockingly violates every consideration of reason and humanity.
Assuming that in this state, as in most of the others where I have had occasion to appear before the Supreme Court, that is from the oral argument that the court receives its first impression of the case, before proceeding with a discussion of the errors assigned, it will aid the court, I feel, to state the salient features of the case.
I was not present at the trial in the court below; hence I cannot as fully acquaint the court with the atmosphere of the trial, as I could through personal presence.
This disadvantage, however, is fully compensated, from the fact that I am able to take an impersonal and altogether unprejudiced view of the case, as my knowledge comes from a careful study of the abstract in the court here.
And after a most painstaking study of the facts as they appear, I feel warranted in saying to this court, and in saying with emphasis, that every element essential to conviction (1) identification beyond a reasonable doubt, (2) proof of guilt beyond a reasonable doubt, (3) absence of motive, (4) the denial of the substantive right of personal presence and by counsel, are so wanting in the case, and the constitutional safeguards prescribed to assure a fair, impartial and unprejudiced trial-a trial that results in conviction upon guilt alone-have been so utterly disregarded, that even this cursory presentation, based as it is solely on the record, will convince this court that the verdict cannot stand and the sentence must be set aside....
Facts of the Case.
On the night of January 10, 1914, the deceased, J. S. Morrison, with his two sons, was in his store, here in the city, engaged in routine duties of a tradesman. There was evidently an apprehension in the mind of the deceased, for he loaded his revolver (Abs. 86), placed it in the ice box, where the door had been removed, and where the gun would be right at hand, and about ten o'clock two men came in, exclaiming, "We've got you now," and began shooting, firing, it seems, some five to seven shots, killing J. S. Morrison and his son Arling Morrison.
Such a tragedy, in the midst of a busy city, on a prominent street, could have been prompted by only one motive—REVENGE. There must have been hot anger and deadly wrath moving the assailants to this desperate deed at such a time and under such a risk.
Naturally every feeling of good citizenship is alert not only to discover the murderer, but to visit such a punishment as to deter others from such an awful crime—I say an awful crime, the highest crime known to the law of the land, the highest tragedy known to the law of nature, and the thing that even the most primitive society is organized to protect against.
But, in this crisis, we should never avenge in hot haste and add to private assassination the horrors of a judicial murder—for when an innocent man is convicted and executed the command "thou shalt do no murder," is deliberately broken and crime stalks insolently along, unwhipped of justice.
Then the duty devolving on this court is, as I take it, to know to a moral certainty, that certainty that excludes all reasonable doubt, the identity of the criminal agent and to so connect him with the crime that there is no reasonable doubt of his guilt.
Let us consider whether or not this has been definitely fixed upon the defendant, or whether vague suspicions, prejudgments, inference and speculations have been allowed to usurp the place during the trial that should be filled with convincing and satisfying evidence.
The young son who was present, the only living witness to the tragedy, says:
Two voices shouted, 'We've got you sow!' " (Abs. 80); the men had on red bandanna hand kerchiefs, so that the point came down over their chin. They had on soft felt hats. There was a little difference in the height of the men; the taller was leading, and nearest the father.
The defendant's height is about the same and his size compares (Abs. 92) just the same as the man I saw.
Is there any identification of any person in this evidence?
The next witness to identification in Phoebe Seeley:
Going home that night, we met two men as we were crossing Jefferson street (Abs. 182). One was slightly taller than the other; the taller man turned, directing his gaze toward us and I noticed a red handkerchief on the neck of the taller man (Abs. 183). His face was thin and a sharp nose and rather large nostrils. (Abs. 185).
Recall, if you please, that at this point the defendant was without counsel, and one of the friends of the court suggested (Abs. 186), that the questions were all unfair and all leading and that the witness was receiving the answer she should make from the district attorney.
And she continues:
I have seen the defendant standing since and his height is very much the same with the height of the man that turned and looked at me.
Now listen to the district attorney: (Abs. 188.)
Q. How does the nose of Mr. Hillstrom compare with the nose of the man that looked at you there?
A. Very much the same.
Q. How do the marks on the left-hand side of the face and neck correspond with the marks you saw on that man?
A. They look a good deal alike to me as on the same man I saw.
Special features arc pointed out; comparisons are invited as to detail—efforts, by suggestion, to make the witness see what she had never seen. A man fair to the defendant and to the state would never have so willfully disregarded the rule as to manufacture fancied resemblances in the excited imagination of a woman testifying in a court room. He would have said: If you notice any resemblance, state the facts on which it is based, and be so sure about it that you can state it in your own language—for remember that the life of a man depends upon it, and there must be no guesswork, no vague impressions, but facts that satisfy the conscience. Instead of that he does all but ask her directly to state that the men are the same. By all possible stretch of imagination, helped out by suggestions, her nearest guess is "that they looked very much the same."...
Concluding, I now ask your honors frankly, if you, or anyone that is dear to you, was condemned upon the inconclusive, disjointed fragments of suspicion, misnomered by the state as evidence against this defendant, would you say that you or they were JUSTLY condemned and that the crime charged had been proved against you beyond a reasonable doubt?
Would you, or would you permit anyone dear to you to go to his death under this flimsy testimony and then say that you or he had been tried, fairly and impartially, according to the law of the land, and in accordance with the safeguards provided by the constitution.
Now, your honors, unless you can answer these queries firmly by YES, you must reverse this case. So far as the law is concerned, you must each stand in Hillstrom's place, and standing in that place you must be able to say upon your conscience that you have been proven guilty beyond a reasonable doubt after a fair and impartial hearing; after a full opportunity to present and prove your defense, both in person and by counsel and that you are condemned because you are the guilty agent of the crime that the state here seeks to punish.
Being normal and just men, the members of the final tribunal of the property, liberty and life of every man in this state, you cannot concur in the sentence imposed on this man, because there is in the abstract of the record that error which commands you to say that great and manifest injury has been done to this defendant; that there has been such a disregard of constitutional safeguards in the trial, that to affirm the judgment would be to place in jeopardy every man and to have his life staked upon the conjectures, the worthless comparisons, the fancied resemblances and the prejudgments of those utterly unable to speak a single fact that could satisfy the reason: thereby establishing a precedent that would make law and decent procedure give way to the chaos that has enwrapped the great nations of Europe, where solemn obligations of high contracting nations are mere scraps of paper and where hatred and prejudice direct evil forces to the utter destruction of mankind. And no less in kind or degree, because directed against a single man, the defendant—a defenseless, almost helpless and an illegally convicted young man.
O. N. Hilton,
Of Counsel for Appellant and Defendant.