The Salt Lake Herald

AT LAST.
The Blind Goddess Opens Her
Eyes and the
SUSPENDED SENTENCE FALLS
Upon Editor Hemenway—The Motion
of Mr. Hiles—The Court Recites
a List of the Editor's Foibles.

(The annexed report from our Ogden
correspondent was in the delayed mail
on Thursday night and failed to reach
here until yesterday.)

Quite a breeze was created on the
streets yesterday by the announcement
that Assistant District Attorney Hiles
had made a motion before Judge Pow-
ers, to set aside the order of the court.
suspending sentence in the two cases of
libel of which C. W. Hemenway, editor
of the Ogden Herald, was convicted in
February last, by his own plea of guilty.
The motion which was made at the
morning session of the First District
Court, was made on the ground that the
record did not show the cause of the
suspension and therefore, the order
was an improvident one. The prose-
cuting attorney asked that the order be
revoked and that Mr. Hemenway be
brought into court and sentenced on
the two indictments. A warrant was
accordingly issued and Mr. Hemenway
was brought before the court. A con-
tinuance in the case was had until 2
o'clock p. m. and the defendant con-
sulted Mr. J. N. Kimball who appeared
at the bar of justice in the afternoon
in his behalf.

At the opening of the court in the
afternoon, quite a number of spec-
tators had assembled to witness the pro-
ceedings. Mr. Kimball stated to the
court that he felt a diffidence in appear-
ing for the defense on account of his
previous connection with the case. He
was informed that that would make no
difference and the court would be
pleased to hear what he had to say.

Mr. Kimball then asked to have the
record of the case read and clerk
Perkins turned back to the date of
February 8th, 1886, and read: "In the
cause, indictment No. 686, judgment is
suspended until the further order of the
court. This is the case wherein the de-
fendant libeled General Kimball and
the other is the libel of Chief Justice C.
S. Zane." The record is precisely the
same in both cases. Mr. Kimball took
the position that the court had the in-
herent right, although the statutes are
silent upon the subject, to suspend
sentence in criminal cases and cited a
number of authorities to substantiate
the position. Referring to the part of
the motion asking that Mr. Hemenway
be sentenced on the cases at bar. Mr.
Kimball cited the Utah statutes, claim-
ing that the court had lost jurisdiction
of the case by not passing sentence dur-
ing the term of court at which the de-
fendant was convicted.

Mr. Hiles, replying, said he would not
attempt to controvert the proposition
that the court has the inherent right
under the common law rule to suspend
sentence; but, he said, the record must
show the grounds upon which the
sentence is suspended. The record in
this sentence does not make such a
showing. He further claimed that, as
the defense relied upon the common
law rule for the power of the court to
suspend sentence, the same rule, and
not the statute, should apply when it
came to bringing the defendant up to
pass sentence upon him.

His attention had been called to this
matter some three weeks since but he
had not examined the record of
the case until yesterday (Wednesday)
and
was surprised to find that it
did not show the requisite cause.
of suspension. He
was
aware
of the position of the court, and was
willing to take it upon his own shoul-
ders as the attorney for the people, and
he now insisted that the suspended sen-
tence be passed.

Mr. Kimball made a brief reply in
which he claimed that the people
should show cause why the defendant
should be brought up for sentence.

The Court briefly reviewed the argu-
ments of the counsel, and held that as
the Court had the right to suspend sen-
tence without giving any
cause,
so it had power to pass a sus-
panded sentence without showing any
reason therefor. The Court then told
Mr. Hemenway to stand up and asked
him if he had anything to say why sen-
tence should not now be passed upon
him.

Mr. Hemenway said that he did not
know that he had anything to say. The
court is familiar with the circumstances
of the case.

His Honor then said that when the
defendant stood before the court for
sentence, he promised to set an exam-
ple to the journalists of this Territory
and not to commit any more libels.
He then recounted the course of the
editor and named a number of libelous
articles that had been published by him,
delivering a little homily that must
have been very unpleasant for the de-
fendant to listen to. The court's stric-
tures on Mr. Hemenway were very se-
vere and the audience almost held their
breath while they were being spoken.
The proceeding was brought to a close
by the Court sentencing Mr. Hemenway
to pay a fine of $500 in the case of libel
against Mr. N. Kimball, and to be re-
manded to the custody of the United
States Marshal until the fine was paid;
on the other charge he was sentenced to
imprisonment in the County Jail of
Weber County for the term of one year,
said sentence to begin at the time of
and continue from the satisfaction of
the first sentence.

ing an appeal be fixed. The Court was
of the opinion that bail could not be
taken; but, upon reference to the stat-
utes, yielded the point, and fixed the
amount at $3,000. Mr. Kimball was
given until Saturday evening next to
file a bill of exceptions.