The record-union., 1895-07-17
OFFICER RUTHERFORD DISCHARGED
His Alleged Assault on Veteran Daniel
McCabe.
The Testimony Was Too Conflicting,
and Justice Henry Could Not
Find Him Guilty.

Find Him Guilty.
The case of Police officer w. P. Ruth
erford. charged with battery on Daniel
McCabe on the night of January oth. was
called in Justice Henry's court yester-
day.
G. T. Jones, Rutherford's attorney,
moved that the case be dismissed on the
grounds that there was no complaint on
file sworn to as the law directs, and also
that the court had no jurisdiction in the
matter. Justice Henry said he would
hold his decision in abeyance.
Charles Bowman testified that he saw
Rutherford strike McCabe over the mead
with his club. At that time McCabe was
lying on the ground. Rutherford struck
McCabe two or three times. Witness did
not know why the officer struck Nc
Cabe.
Steve Curry. hackman, testified that
before the alleged assault Rutherford
told him McCabe had been raising q dis
turbance in the neighborhood of Seventh
and X streets. Curry said McCabe re-
sisted every attempt 10 be arrested; and
Rutherford had TO throw him down.
While lying on the ground McCabe was
kicking and Rutherford struck him two
or three times with his club. Before
rutherford throw McCabe down the lat
ter strnck at the officer and caught hold
of his legs and attempted TO throw him
| down. Rutherford did not strike Nc
| Cabe until McCabe caught him about the
| legs.
! W. II. Williamson of Routiers said he
witnessed the affair. Before the trouble
he heard somebody singing and making
| considerable noise. Two men approached
| McCabe. Witness said he thought they
were Officers Rutherford and Higgins
| Higgins atterward went into the Del
monico Restaurant and telephoned Tor
| the patrol wagon. Witness saw Ruther-
| ford throw McCabe down and strike him
| with his club over the head three or four
| times McCabe begged the bystanders
| TO prevent Rutherford Iro IN striking him
| any more. Steve Curry also requested
| Rutherford not to strike McCabe. Wit
ness thought MCCabe resisted while he
was being put into the patrol wagon.
| George White, q hackman, testified
| that McCabe was intoxicated, but not
| noisy, and had created no disturbance.
| Rutherford came on the scene and or
dered AlcCabe away. Afterward witness
saw tho officer throw MoCabe down and
strike him twice over tho mead with his
club. Rutherford put his knee over Nc
| Cabe's chest while he was striking Nc
| Cabe.
Mr.. Jones asked White if he did not
| have considerable feeling against Ruther-
| ford. Witness replied he had no partiou-
lar feeling against the officer
| White was asked by Mr.. Jones if about
month ago, in an uptown restaurant,
| he did not say TO +. ii. AlmoS and George
| kranllel that he would swear to anything
| 10 give Rutherford the worst of it, and
! that he would do anything to down"
| Rutherford.
White replied he did not make use of
those words. He was told that Ruther-
ford had been seen lying drunk III a
| certain place, and instead of saying that
which was attributed TO him, he said if
ever he saw Rutherford in that condition
| he would testify TO that fact against him.
| The prosecution then closed It's case,
and Albert Fuller took the stand for the
! defense. Fuller said his attention to where
Rutherford and McCabe were standing
was attracted by loud talking at Seventh
and X streets. Rutherford had hold
! of McCabe aud told him to- keep still.
! McCsbe tried 10 get away and rutherford
! threw him down. McCabe kicked Ruth
erford in the face and knocked his hat OIL
i. Ill. Almos testified that about q
| month ago, in the Poodle Dog Restau-
rant. George White, one of the witnesses
| for the prosecution, said he would do
most anything to down" Rutherford.
! White said when the officers case came
up in court he would "do" him up. He
said he was no friend of Rutherford's 8.
since they had some trouble some time
/ before.
George Krankel testified that he was
with Almos In the restaurant when White
| said he would do anything to down"
| ~, i -
| when the officers case came up for trial
Officer j. f. Logue testified that Nc
Cabe attempted 10 escape from Ruther
| ford while being taken to jail in the pa
| troll wagon.
officer j. p Bagley testified that the
next morning McCabe was fined in the
! Police Court for disturbing the peace
| AIcCabe atterward thanked Rutherford
| for having arrested him. McCabe in
yited Rutherford to take drink with
him, but the invitation was declined.
rutherford then took the stand i'll his
own behalf. On the night OF the Sth of
last January he heard McCabe raising
| distur rbance in front OF the Golden Eagle
Hotel. He told McCabe to keep quiet,
| but instead of doing so the latter contin-
ued to be noisy. he then told McCabe
that he was officer, and placed Me-
Cabe under arrest. Witness requested
Officer Higgins to call for the patrol
| wagon. While Higgins was absent Nc
| Cabe turned on Rutherford and cursed
/ him and struck at him. Witness told
McCabe he should not disgrace the @. y.
| K. button that he was wearing. Witness
denied having thrown McCabe forcibly
to the ground. While be was lying
down he kicked witness on the mouth
and in the abdomen. Witness found it
necessary TO use his club lightly on Me-
| Cabe TO subdue him. On the way to the
police station McCabe jumped on wit
ness, and the latter had to force him back
| into the seat OF the wagon.
At the Jail the next morning McCabe
thanked witness TOR having arrested him.
| McCabe had about so in money on him
and q check for S240 when he was ar
rested. McCabe also invited him TO
drink, but the invitation was declined.
Officer Bagley was recalled. lie said he
observed Kutherlord's lip the next morn
ing and it was swollen.
Z. II. Hubbard testified that he was the
! Secretary of the late Grand Jury, and
| that that body instructed him to swear to
| the complaint.
The taking of testimony for the defense
| was then concluded, and District Attor-
ney Ryan asked that rutherford be ad-
judged guilty on The testimony adduced.
| {. L. Jones, on behalf Of the officer,
said that as Mr.. Hubbard did not see the
! ~lAo6 otA "f'So"toi oAAd hhoN HOLulHS dDOuI
| it, he had no right to swear to plant.
| a complaint cannot be issued on inform
alton and belief, and therefore the case
was improperly in court.
The testimony, said Mr.. Jones, did not
show that Rutherford was guilty, and he
should be discharged.
Justice Henry said he would not pass
upon the validity or the complaint, but
| would take into consideration only the
testimony IN the case Ii a said the ta.ti-
| mony was SO conflicting as to whether or
not rutherford used more force than he
was authorized to use that he would have
10 give him the hanelit Of tha dnnht II O