Opinion of the Court-Norcross, J. ant, but that he had invariably heard expressions of opinion strongly unfavorable to him. R. R. Landes, an employee of the Bank of Austin, testified substantially to the following effect: That from the expressions of opinion that he had heard the feeling in the community was not at all in favor of the defendant, and in the majority of cases was very strong against him. On the night of the killing, witness testified, he heard two or three persons express themselves to the effect that the defendant should be lynched. T. A. Oliver, deputy sheriff and jailer, testified to the following: "Q. You have had an opportunity since to learn what the public opinion is with reference to the defendant? A. Yes, I have heard talk. Q. Will you state whether or not, as far as you have heard, that it is favorable or unfavorable? A. I should say it is unfavorable. Q. Very unfavorable? A. I should say very unfavorable. Q. To what number of people of Lander County does this feeling extend? A. I could not say. Q. Do you think it is entertained by a small number or a large number? A. Judging from our efforts to select a jury, I should say quite a large number of people. Q. Do you think that a jury, if selected in this case, will not be influenced by that opinion? A. I would not like to say whether I do or not. Q. Don't you believe, from your knowledge of the situation, that a jury that failed to find a verdict for conviction would receive a very hot reception in the Town of Austin? A. I believe they would. Q. You believe a verdict of that kind would be very unpopular? A. Yes, sir. Q. Don't you think that the fact that it would be unpopular would influence a jury in arriving at a verdict? A. I have no right to say. Q. What is your opinion? A. If I were a juror, I would say it would have no influence. Q. With your knowledge of juries here and the community, do you think that a jury will not be influenced to some extent by the public feeling that exists? A. If a juror qualifies, he should not be so; but I should not like to say that I believe he would be. That is going too far." Charles A. Cantwell, assistant cashier of the Bank of Austin, also an attorney at law, testified as follows: "Q. VOL. XXIX-28 Opinion of the Court-Norcross, J. Some time along about the 31st day of July or the 1st day of August you were asked to counsel with or see the defendant, were you not, or told that you could have the case, or something to that effect? A. I think it was some time within a week after the killing of Mr. Williams that Sheriff Murphy came to me. I don't remember just what the proposition was, but the idea he gave me was that I could have a place in the defense of this case if I desired it. Q. What did you reply? A. I told him that I did not want it. Q. Why? A. I told him in the first place that it was the unpopular side of the case, and I did not care to go into it, and my own feelings were such that I did not feel that I could do Dwyer justice as an attorney. Q. What did you consider the feelings as against the defendant? A. I took it that his position was so unpopular that I would injure myself in the long run by taking any part in the case. Q. Do you think there has been very much of a change since that time? A. No, sir; I do not. * * * My friendship for Henry Dyer, and my friendship and respect for Bert Williams, and the general view that I took of this killing, were such that I could not go into the defense of this man with my whole heart and soul, and give him what he was entitled to get from me as an attorney under the oath that I have taken before this court. *** Q. Mr. Cantwell, what did you consider the public opinion in this town and this vicinity with reference to the guilt of Mr. Dwyer at the present time? A. I should judge it is almost the unanimous opinion of the community that he is guilty of the offense charged against him. Q. Do you believe, from your own experience, that any one, being in this town and community at the time of this occurrence, and remaining here ever since, could escape a feeling in this matter? I mean a feeling of resentment against the defendant? A. No; I do not think they could. * * Q. Do you not believe that any jury impaneled to try this case would be to some extent influenced by the feeling of prejudice against the defendant, which you say exists in this community? A. Of course, there is a possibility that you could get a jury so strong-minded that they would not consider this; but I do not believe that it is possible. Q. To get a jury that would not be influenced to some extent * Opinion of the Court-Norcross, J. by the feeling of the community? A. I think it would not be possible to get such a jury." N. E. Bartoo, master mechanic of the Nevada Central Railroad Company, testified as follows: "Q. Do you know of any excited condition of public feeling at Battle Mountain? A. Yes, sir; it was very strong. Q. Is it right now? A. Yes; there is some feeling there yet. Q. What were the manifestations, so far as you remember, of that feeling? A. The feeling was that they wanted to hang Dwyer. Q. You mean by that they wanted to hang him by violence? A. Yes, sir; they talked about lynching. Q. Were you present at any meeting that was held there? A. There was not any meeting. It seemed to be a general feeling with everybody. Q. Didn't some of them, with the view of carrying into effect the general public sentiment, arrange for car or engine to come to Austin? A. They asked me if they could get an engine to bring them up here; I told them, 'Yes'; that I would run the engine and help pull the string. Q. How long was that after the death of Mr. Williams? A. It was on the 1st of August. Q. Did you meet Mr. Watt when you came to Austin? met him the first time after I came up to the funeral, in the afternoon about 2 o'clock. Q. Did you have some conversation with him regarding what ought to be done regarding the matter? A. We talked the matter over, and he said: 'I don't know as we can do anything now. We might see Williams, and if he wants to do anything, it is not too late yet.' I said if there was anything doing I would stay. Q. Were you discussing the lynching of defendant? A. Yes, sir." A. I George Watt, ex-sheriff of Lander County, testified as follows: "A. I have forgotten whether it was the day before Bert was buried, or the day after. * * * I met Bartoo in front of the postoffice, and we talked about the murder, and he asked me what I thought about it. I told him I thought we ought to hang him (Dwyer); but I said that, if his father would not take the interest, I did not feel as if I cared to put myself out. Bartoo said, 'We will go down and see Williams,' and I said 'All right.' As we walked down the street, we met him at the corner of Bray's, coming down the hill. We put the facts before him, and he said that he did not care to see Opinion of the Court-Norcross, J. any more of us get into trouble, and would rather we would let it drop. I said 'We will let it drop right here,' and since then I have taken no interest in the case. Q. You are quite extensively acquainted in Austin? A. Yes, sir; I know every one here. Q. Did you hear many expressions of opinion as to what ought to be done to Dwyer? A. No; I was very busy at the time, and did not hear very much talk. As far as I heard was a general expression of opinion. All were very much worked up over the matter, nearly every one. Q. The feeling was strong against Dwyer? A. Yes, sir." A. J. Maestretti, district attorney, called by the defense as a witness in support of the motion, testified to certain precautions taken by the sheriff to protect the defendant in case of threatened danger, after which the following questions and answers appear in his testimony: "Q. You thought it necessary to take extra precaution? A. I did not think it was absolutely necessary. It is a fact that I thought a great many of the people were very angry and excited about this affair, and if Dwyer should be taken out without proper precaution, and lose his life, it would be a sad reflection on the officers of this court, and it was to take every precaution that, in the event of anything of the kind did occur, the prisoner would have all the protection it was possible to give him. Q. You must have thought there was some danger? A. I thought there was a possibilty of an attempt to get him. Q. You thought that by reason of the excited condition of public opinion? A. Yes, sir." M. J. Murphy, sheriff of the county, was called by the state and gave the following testimony: "Q. Were you here July 31st last? A. No, sir; I arrived here on the 1st of August. Q. Did you, on that day, or any day subsequent to that time, witness the gathering of any mob making any violent manifestations, demonstrations, or clamoring for the life of Dwyer? A. Well, I did see several little crowds around. Q. Did you hear them encouraging or soliciting each other or any one to make an attack on the jail or otherwise get possession of Dwyer? A. I did not hear them, but surmised what was going on. Q. You saw people standing together talking, and you surmised that Opinion of the Court-Norcross, J. they were discussing that subject? A. Yes, sir. * * * Q. You took what steps were necessary, according to your judgment and those with whom you advised, for the safe care and protection of the defendant? A. I did. Q. Is it not a fact, Mr. Murphy, that you openly and on more than one occasion said that any who made an attempt to take the life of Dwyer would have to do so over your dead body? · A. I did." On cross-examination the witness testified: "Q I understood you to say you were at Battle Mountain when this thing occurred? A. I was. Q. Did you hear anything of the excited condition of public opinion at that time? A. I did. Q. By reason of which you telegraphed special instructions to the deputy here to take special precautions? A. Yes, sir; I wired him to capture the man if possible, and use all precaution for protection. Q. The reason of that was you were aware of the condition of public opinion? A. Yes, sir. Q. When you came to Austin, wasn't the condition of public opinion, to your mind, in such an excited state that you thought it was necessary to employ extra guards. A. I did. Q. You did employ extra guards? A. Yes, sir. Q. How many? A. Four. *** Q. You have quite an extensive knowledge in this county? A. Yes, sir. Q. Doesn't the feeling that existed in Austin at that time with reference to, this defendant extend generally to the county? A. As an officer I hear more or less of it going around. Q. You hear a good deal? A. Yes, sir. Q. You regard it as being general? A. In a sense I do. Q. As an officer, do you believe that, with the present state of public feeling in this county, a fair and impartial jury can be obtained to try this case? A. That is a very hard question for me to answer. I believe it is possible to get twelve men here. There are good square men here. Q. Do you think it probable? A. I will say it is possible. Q. During the time these hostile demonstrations and feelings prevailed against the defendant, did you not, on more than one occasion, have to tell people in this town that they could not take Dwyer unless they took him over your dead body? A. I did. Q. Did you believe it necessary to make those statements? A. Yes, sir." L. A. Weller, justice of the peace for Austin, was called by |