The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1894-01-24
MUCH INTEREST MANIFESTED
The Defense Wins a Victory or
Points of Law.
BUDD AND THORNTON ARGUE.
The Insurance People Offer to Take
Judge and Jury to the Scene
of the Tragedy.


the Connecticut Mutual Life Insurance
Company to recover $4,000 insurance
upon the life of her late husband was re-
sumed yesterday in the United States
Circuit Court of Appeals, Judge Gilbert of
Oregon presiding.
When the Judge assembled the bench
there were but eleven jurors in the box
and twelve men summoned by special
venlre In court 1t took only five minutes
TO secure the remaining juror needed. The
jury is composed of the following named
Samuel Wise. David b. Bowen, Fred j.
French. Charles A. Sullivan. Bernard II.
Lucke, jeremiah Browell, Horace B. An
CELL, Horace d. Dunn. Samuel Goldstone,
j.. j. VascOuc ellos, William A. Grade,
Frank Won Rhein.
No sooner had the jury been sworn than
Joseph c. Campbell of Campbell, Reddy &
Nelson, who, with James II. Budd, con-
ducts the case for the insurance company,
threw a bOmbsheI into the plaintiffs camp by
asking the court 10 grant the defense the affirm
alive side OF the case, hat is 10 allow the de-
tense to assume the burden of proof and take
the opening and closing of the case in court.
Crittenden Thornton, the leading counsel for
Mrs. McWhrter, opposed the motion. The ar
gument on the motion lasted until the hour for
the noon recess.
Attorney Budd said: $50 sure are we that we
can prove beyond all doubt that l.. B. McWhir-
ter took his own life that we now offer TO take
the burden OF proof upon ourselves, and instead
of asking the plaintiff 10 prove that her hus-
band was murdered Will prove he killed him.
self. Manifestly If we fail 10 do this she must
win her cause; but we go before this Jury fully
equipped as we believe, to prove our conten-
tloD-"
After hearing all the arguments Judge Gil
bert ruled In favor of the defense, and. as
stated. thus gave II. as entitled by law ac-
eording TO his construction of the statutes, the
opening and closing OF the case.
Before recess at noon, on motion OF
the plaintiff, all witnesses were placed under
IN rule TO remain outside OF the courtroom
until after they had testified. When court
opened at 80 o'clock Messrs. Campbell and
Budd nad another surprise in store for the
palntIfs attorneys. Mr.. Campbell said that
in view of the many complex questions lhat in
was certain would arise In the case the contra.
dictlons In evidence, and so forth, the de-
tense was willing to take at IT'S EXPENSE the
Judge, jury and an attorney from the other
side of the case TO Fresno, In order that the
court and jury might view the McWhuter resi-
dence ana its surroundings, aud thus be able
TO fully understand all the testimony that was
10 be given.
Again the plaintiffs counsel objected and
most strenuously, claiming that the premises
were not In the condition now that they were In
at the time OF McWhirter's death. MIR. Bndd
retorted by saying that one OF Mrs. WcWhir-
tePS attorneys had been living in the house all
the time, and that the defense was willing that
hc SbUuiu dCCOupdHf the Judge ana Jury. The
court decided TO take the motion under advise
ment, and then, after a diagram of the Nc
Whittier house, yard and surroundings had
been produced, James II. Budd made the OPEN
ne speech for the defense.
He Briefly reviewed the career OF McWhirter
from the time lie came 10 this State up TO the
time OF MS death Saying nothing against the
character OF the man, he asserted that he was a
brietiess barTlSter, who had TO borrow money
on which to get married. lie married woman
OF wealth, who at the time of the wedding had
money out AT interest. lOuSaS and lands
most from the start McWhirter began drawing
upon the funds of his wife. The money out ar
interest was called in, one piece of property
after another was mortgaged until only few
weeks before his death the last piece of prop
erty she owned, the homestead, was mort
gagged. "He had thrn reached the last Of his
resources" said Budd. Then it was lie began
loading up with life insurance, until he had no
less than $4,000 on his life. We shall show he
tried TO get 100000 In insurance, but owing
TO MS inability 10 pay the premiums in ready
money was refused. Before he reached the
end of his rope, so to speak, he carried only
$4,000 insurance upon his life"
Ab0uI the same time the speaker continued
McWhirter began to talk about threats against
his life but he never said who had threatened
him, and he deliberately destroyed all the al
legged threatening letters he received before
showing them to any but one friend Passing
rapidly on, MIR. Bud said that il would be
shown that for day or TWO before his DEATH
Whittier had talked TO his wife about their
child and instructed how the boy should be
raised, even writing her letter OF Instructions
as to how the boy should be educated. The
defense proposed to prove that McWhirter had
deliberately planned his suicide, that 1t was
he and he alone who fired all the Shots Fl Xed
The clubs, the mask and the reviewers, both Of
which belonged TO him. The fact tina the night
shirt Nc Wblrter wore was pow der burned
around The hole made by the bullet showed tile
pistol must have been held close TO his breast
and they would prove by the person that saw
him fall that she saw no one run away from
the spot where he was shot.
Entering into minute details as to what
would be the evidence for the insurance COM
pany In support of its allegation OF suicide
MI Budd consumed two hours time.
CrltteDden Thornton followed him and en-
tered general denial 10 most of the Allegations
made by Mr.. Budd. He said McWhirter had
money and prospects and was no penniess ad-
Ventufer, and said mat IL would be proven that
seven shots, not six, were hrt d that the odd
SD OF was from revolver of a different chatac-
ter than that owned and The one claimed 10 be-
long 10 McWhirier His speech was mainly a
resume in brief OF the speech made at the trial
OF Richard b Heath for MURDER, which has al
ready been fully published.
Tits between counsel were frequent es-
pecially when Mr.. Thornton scored the officials
ID Office IN Fresno County at the time McWhir-
Ter was killed. He called Recorder Bell a
Thomas Bury. a detective who he alleged
sprang the suicide theory and had manufac-
tured evidence 10 support 1t.
Alter the speeches but two witnesses were
called and they merely 10 identify the exhibits
To be used in the trial. To-day the trial will be
resumed and IL Will probably be two weeks be-
fore IL re aches the Jury.