The morning call., 1894-02-02

1t is known that one of the jurors has on
several occasions discussed the testimony
of witnesses In the corridors of the Ap-
praisers' building, and il is highly prob
able that in the event of verdict
either way this fact will form the basis
of a motion for new trial by the side de-
feated. That the Juror intended no wrong is
certain, but counsel on both sides bave been
informed of his indiseretlon in talking too
much and will doubtless take advantage OF 1t.
When court opened Judge Gilbert announced
his ruling upon the question OF the admission
OF the testimony OF Witness Bernhard TO the
effect that McWhirter had told him that under
certain circums tances he would commit sui
eide. The court held that many a man has
said that il and so happened to him he
would kill himself, and when placed in ex
actly that position has not only not killed him.
self but made a terrible fight for lfe Such
statements, the court held, were generally
made carelessly and were of no force unless
often repeated, In the present instance the
conversation was very remote and the ODjec
ton TO its Introduction was sustained.
Then Mr.. Campbell, in order 10 secure an
ceptiOn put MIR. Bernhard on the stand again
and asked him 10 state the time of the cOnver-
Sation between himself and New hirter, which
he fixed as the spring of 1889. Then Campbell
asked him to state what that conversation was.
The objection was promptly made, but Judge
Gilbert hesitated He finally said that during
the noon recess the witness coulu rel te 10 him
the conversation and he would then decide
whether or not it could go TO the jury.
portion OF the testimony OF Mrs. McWhir-
II. Os
murder, in regard TO her husbands pistols " as
then read.
Following this w. r. Lemon. clerk OF the
Police Court OF Oakland was placed upon the
stand. He statti his occupation and identified
certain papers. To wit complaint. warrant.
bail bond aud The court record. The papers
showed that the time OF his death l.. b. Nc
Wbirter was under arrest on charge Of al
tempting to eXtOrt by threats $500 from one
A. Marks McWhrter was arrested on March
28, 1892, and gave bail in the sum OF 5000.
Various coniinuances were had, and the case
was set for trial on September 22, 1892 ana at
that time dismissed because McWnirter was
dead
There was bitter and determined fight
against the admission of the testimony. The
jury was sent out of court, and for half an hour
The attorneys argued for and against the intro
ductiOn of the evidence. Mr.. Campbell and MIR.
Budd argued that the charge OF attempted ex-
1ortion worried New hIrter and that he often
spoke OF it, and that it was one OF the things
unat made him Kill himself, f-aring disgrace.
The plaintiff argued that McWbirter was not
only innocent, out that me charge OF crime dlo
mot worry him. Counsel offered 10 show thai
sMcWhirter went 10 the attorneys for the prose-
-cutlon IN the case OF Marks against him and
sDeeged them to settle X.
Judge Gilbert held that the records we're
proper evidence, teOding to show that II the
charge barassed the deceased 1t might have
aad a tendency 10 cause him to commit suicide.
The plaintif noted an exception. The jury was
then brought IN and Mr. Campbell read TO them
the complaint and record in the case.
NJ. i. Chapman of OaslaDd was then sworn /:
'Am an attornry. Have been Mayor OF Oak
Hand. Knew Louis j. McWhiIuer / was asked
by Mr.. Marks 10 prosecute the case against Me-
Whirter. Had conversation with Nc Whrter
an June about the case. He came to my office
and asked NE 10 see Marks and have lhe prose-
cution withdrawn. He sai0 the case was wor-
1ying him and his wife nearly TO death; thas he
had lost ten pounds Of flesh; that his polite Al
enemies were throwing the charge in his teeth
all the time. McWhirter said lie did not r. ar
the charge. but To have such a charge hanging
over him worried him almost 10 death. Marks
said to witness, When agreed not 10 prose.
cute MeWhrter he agreed TO dismiss the ac-
aioD pending against me in Fresno. HI did not
Keep faith with M, and / Will have him ar
rested as / proposed in tie first instance"
g. Z. Colwell, an attorney-at-law and at one
time partner with McWhIrter IN the pubca-
tion OF the Fresno Democrat, testified that at
the time OF the engagement of McWhlrter To
marry Miss Nanny Biasingame he (Cowell)
went surety for the payment of the engagement
ring; that afterward, in the dissolution of the
partnership, witness assumed the payment OF
the ring. This was in September. 1889, some
time after the marriage.
Thomas l.. Gates, an Insurance agent al
Fresno. testified: "McWhirter came TO my Of
fee and threw down couple OF notes on the
desk OF an insurance agent who was 10 my Office
with me. They had some conversation. Alter
ward he talked with me, saying that he had
taken out 10000 worth OF Insurance and
wanted to take cut $4,000 more. said, We'll