The Anaconda standard., 1895-12-14
BENHAM NOT GUILTY
HUGHES CATTLE ARE GONE
But the Thieves Are still at Large
-Broderiok. Also Accused. Is
Released. So Two Men
Are Proved Innocent.

for three days on the charge or grand |
larceny or cattle stealing, was yester-
day afternoon honorably acquitted and
declared not guilty at the request Oh
the prosecuting attorney. Mr.. Booth
who interrupted the trial. and In
statement to the court admitted that
the state had failed to make good It's
charges against the defendant, ana
asking that the jury be instructed to
return a verdict of not guilty, whicn
was done, and Benham's bonds exon
Grated and he be discharged from Gus
tody.
Mr.. Booth then also asked that the
bonds of Joseph Broderick, VINO hao
been informed against Jointly with
Benham, also be exonerated, and the
case against him dismissed in view of
the testimony in the Benham case. and
an order to that effect was entered ana
both defendants left the court room
amid the congratulations of friends.
In some respects the evidence In
Benham's case was remarkable. The
state had three witnesses that swore
positively and emphatically that they
saw Benham drive the stolen cattle
through Woodville on the evening OF
the 18th of September, and two others
swore just as positively that they saw
him on the following Sunday. Sept. ~
slaughter house. and several other
witnesses who saw the cattle in the
corral before they were slaughtered.
But they were all honestly or inten-
tionally mistaken, for the defense put
up an alibi that was as conclusive as
IL was surprising to the prosecution.
Not only was IL shown that on the 18th
Benham was in Butte all day and al
most every minute of his time was
accounted for, by book entries made by
himself at different times of the day.
but even by bank records, cancelled
checks and by a score of witnesses
who had business dealing with him
during the day. Somebody stole Will
lam Hughes herd of cattle, but the
state evidently got way off in its dates,
and but for the accused's ability to
prove a positive alibi IT might have
succeeded in sending to the peniten-
tiary a man who now appears to be
entirely innocent.
When the trial was resumed yester-
day morning j. L. Wines asked the
court to reconsider its ruling admit
ting in evidence on the previous day
the defendants day book showing by
entries in IL. made by the defendant,
IL was alleged. on the day he was sup
posed TO be driving the band of stolen
cattle through Meaderville. Mr.. Wines
said they could not prove an alibi by
the defendants own declarations or by
fendant. II such testimony were COM
petnent said Mr.. Wines. any defend
ant in a criminal action could clear
himself by preparing his own evidence.
Judge Speer interrupted Mr.. Wines to
say that the book was admitted in evil
dence only as a circumstance and sug-
gested that a man might have been
in walkerville and in Butte. few
miles away, on the same day. Mr.
Wines however, insisted that the rule
of law. both in civil and criminal cases,
was well established that the declara-
tions of a defendant were incompetent
as evidence for the defense.
In replying TO Mr.. Wines, Mr.. Hal
dorm said the book entries were not
declarations by the defendant, but
were silent witnesses corroborative of
the testimony of Mr.. Benham-merely
a link in the chain of circumstances
going to establish a perfect alibi for
the defendant.
Mr.. Cotter said the entries We're
made in the ordinary and usual course
of business and were introduced as
corroborative circumstances. II the
entries were made in the usual course
of business and in connection with
other entries II is conclusive evidence
that the testimony was not manufac-
tured.
The court said II was ready to pass
on the question without further argu-
ment and thought il erred in admit
ting the book in evidence on Thurs
day. and e was therefore ordered
stricken from the records. The court
said the question had been decided by
the state supreme court In another
case The jury were instructed to dis
regard the testimony.
The defense took an exception and
then Mr. Haldorn attempted to get in
other testimony about the books but
was ruled out Mr.. Benham then testi-
fed that on the evening OF Sept. 10
when he was alleged TO have been seen
at woodville. between the hours OF
$3.50 and o'clock, he ate dinner al
home at $3.50 o'clock with his wife and
another woman and three or four men
when he named. Mr. Benham gave a
long account OF everything he did thai
day. He helped TO move a barn, worked
in the Office. sold meat in the shop. de-
livered meat about town and did vari-
Gus other things. Benham said II
would take at least three-quarters of q
day to go from Butte to Rand's ranch
where the alleged stolen cattle were
found. and drive them 10 Butte HI
was not up there on the 18th and die
not meet the man BENJAMIN i'm tn.
canyon below woodville and haC
never known him at all The defend
ant said he was up there on Sunday
the ed. in company with a boy names
Crangle. and bought some cattle from
a rancher named Strasse and SOM
from one Romaniski. nine head I'm all
He then came back 10 Butte and re
turned for the cattle the next day witt
a young man named Riley. They lef
Butte in the afternoon and on their re
turn with the cattle they met Mrs
Newgardt. the woman who testihe'
that she met Benham on the 18th wit
about 80 head OF cattle. The witnes
said his firm also bought some cattl
branded with a mule shoe but the sho
was upside down. The alleged stole
cattle were branded with a horse sho,
right side up. The firm also had som
&c" branded cattle and the witnes
said IL would take an expert TO te
the difference between the three. II
denied that he killed some horse-sho