The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1888-02-03
THEATTACK ON THE VERDICT
Errors of Fact and Law Claimed by Coy
and Bernhamer to Obtain New Trial.
bOner Said About Ills Voting for Conviction
Out Of Sympathy for Fellow-Juror.

afternoon in what little was done concerning
the verdict against Coy and Bernaamer, taking
place in Judge Woods's private Office. No one,
not even the convicted men, outside of the at
torneys, excepting newspaper reporters, were
admitted to the room. The legal phases of the
lookedfor proceedings had. of course. but little
interest for the curious, who came with the ex-
pectation of hearing sentence passed. The
crowd. for tho greater part, was composed of
persons who train with the gang, and here and
there could be seen political beelers who have
slways been prompt in executing the orders of
the little boss of Marion county Democracy.
Coy was as chatty and atfable usual, as he sat
in the Office of the assistant District Attorney,
but Bernhamer walked from the nall into the
Office and then into the hall again. with nothing
to say to any one. The motion for new trial
bad been prepared, with its long list of alleged
and Irregularities to support them, and
he doubt thought the less ostentation he
made over il the better it would be for him in
the end. The judge and attorneys did not
talk about the motion so much whether the
government wanted time to prepare afidavits
counter to those Coy and Bernhamer's attor-
neys had fled These papers did not come into
the hands of the District Attorney until little
before after the noon hour; hence he, and
his assis ant, Judge Claypoo did not have suf
fcient time to consider them. The attorneys on
the other side thought their case was such that
they could submit it without argument if the
government had nothing to offer in the way of
afidavits. But Mr.. Sellers pot inclined to
let the motion be heard simply on the presenta-
ton of the convicted men. Judge McNutt then
said that he had been detained at home until
Wednesday other business, and not
well informed as to what had been done by his
y IL. -
object to postponng the hearing, but desired to
have the matter fastened, as his side
wished to have ample time to prepare bill of
exceptions in the event the motion for a new
trial overruled. Judge Woods assured him
there would be no trouble about that The con-
versation then turned some facts Judge Nc
Mutt wished to have appear in the record. One
the statement of Judge Woods to the effect
that after Juror Messck had returned from his
Sunday visit homo preceding the Saturday
which the verdict returned he told him of
the serious illness of his mother. It was after
the evidence closed and just before the argu-
ment that Mr.. Messick said to him that he had
written homo stating he could not come home
until the trial closed. Judge Woods told him
that was not necessary, in the event OF his
mothers death steps would be taken
10 allow him to attend the funeral.
Judge McNutt said that it would be necessary
for them to take oral evidence to the trans
mission of the Messick telegram into the jury
room Saturday morning, and the sending out of
bis telegram IN response saying that he would
leave for home on the o'clock train Saturday
evening. Judge Woods replied that he did not
understand Mr.. Messick telegraphed he would
leave on that train, but that he hoped to do
AS these matters, together with the presentation
OF the governments side, would take consider
able time, the formal hearing Of the motion was
deferred until this morning.
The papers filed by the attorneys of the n
victed men first show that they ask for
trial because the verdict of the jury contra
~ 10 law and not supported by sufficient evil
dence They next set forth that an error of law
occurred at the trial in the court, on its own
ton, giving to the jury general instructions to
which defendants excepted. 1t is also claimed
an error of law occurred in the admission by the
court over defendants objections of incompe-
tent evidence from Moses q. McLaip, Charles J.
Many, Lorenz Schmidt, Allen Hisey. Abel f.
Davis ana Andrew Oehler, who testified that
the several tally sheets at issue had
been changed. Defendants objected to this
evidence because it was irrelevant
1t is further claimed that it was while
the jury was celebrating its verdict for the
judge to direct the bailiff, without the knowl-
edge of defendants or their attorneys to give
Juror Messck telegram addressed to him in
forming him of the death of his mother aud re-
questing him to come homo on that account In
support of this feature the at1idavits of Coy,
Bernhamer, John w. Kern, G. F. and j. G.. Nc
Mutt, A. q. Smith and John W. Buskirk were
presented. IL 10 also proposed to sustain this
claim by oral evidence of United States Marshal
Hawkins. The defendants asked the court TO
compel this officer testify because he had re-
fused to make an affidavit in support of
this position. An alleged irregularity and
the misconduct of Albert Meesick. the
juror is detailed in his importuning Jacob Car
homer and James Peters ITO agree upon a
dict of guilty. so that he might go to his homo
TO attend the obseQuies of his mother" 1t is
stated that Gardener and Peters, who had been
tn favor OF acquittal, were induced out of sym
MPSSlck O nd
vote for conviction against their judgment"
Afidavits from Simeon Coy. w F. A. Bern
johnson. George A. Buskirk. Charles M Cooper
John Minor, and NJ It. Stokes III proof of this
statement were filed. Another objection is
presented in the statement that after Judge
Woods had been informed the jurors could
not possibly agree he at o'clock SATURDAY.
evening refused to discharge them and ordered
cots to be sent into the jury Misconduct
OF jurors in partaking OF spurious liquors with
out permission of the court is also alleged. Will
lis r. Martin, the headwalter, and Fred Mitchell,
d waiter at the Grand Hotel who attended the
Jurors at their meals In the ordinary, swear to
Two of the jurors drinking whisky on one occa-
sion just before entering. One of them drank
q sng!e glass OF whisky while the other had
two. Bernhamer for himself claims new trial |
because the court erred in overruling his
motion to correct the record of the former trial
so as 10 snow that he was not present IN person |
or by attorney when the jury discharged
In the afidavits of Gov and Bernhamer it is |
Set forth that the appeals of Messick to Car |
boner and Peters to vote fer conviction he |
could go home to attend his mothers funeral |
were tearfully continued throughout the entire |
further deliberations of the jury" after the Mes
flck telegram was received. The convicted men
say Jacob Gardener had been in favor OF an ac-
Qulttal, and so voted until o'clock Saturday |
evening when he yielded to the entreaties and
appeals of Messick 1t was after the telegram
was received. they swear. that Messck went
over TO the majority, representing aud |
arguing, as did John l.. Davis, fore
man of the jury, and an ur-
gent advocate for conviction, that if
tho jury would find the defendants guilty the
court would assess only nominal fine without
imprisonment" 1t is further stated that the
telegram Influenced other jurors besides Car
boner and that twice a message was sent to the
Judge that it impossible for the jury TO
agree. John J. Cooper and Joseph Riley swear
that Gardener, the Goth inst, detailing to
them Messicks opportunities, said John L.
Davis, the foreman, gave the jurors assurance
~. 49, E.. 1. rsr,rr