Omaha daily bee., 1895-12-01
row VAS ROUND ro SERVE
Could Not he Removed ns Juror In
Outcnlt Case.

Outcaiti Case.
Considerable criticism has been aroused
by the selection OF Tom Benton, ~ex-state
auditor. as a member of the jury to try the
case against Cashier Ontcalt of the defunct
Capital National bank Of Lincoln, now on in
the federal court.
Under the law the government has the
privilege, in a criminal case. Of exercising
three peremptory challenges, while the de-
Tense has the same privilege. The order
Of procedure is for the government to exercise
It's challenge first, then the defense, then
the government. and 80 in turn until all six
are exhausted. In this case the government
and defense had exercised one challenge each,
but when 1t came to the governments second
challenge Attorney Sawyer waived his second
one, and the defense used its second one.
| When 1t came to the governments third chal-
leLge Mr.. Sawyer looked the jury over and
! stated to the court that he was satisfied to
submit the case to the twelve men in the box,
and that the government would waive its
last peremptory also.
Mr.. Burr. who is one of the counsel for
the defense, secured the release of one of the
jurymen on the ground that he was an at
torney, and when Clerk Frank called the next
juryman the man was Thomas H.. Benton"
District Attorney Sawyer was plainly dis
concerted at the turn Of affairs. but went
to work v~aliantly TO have Benton excused
for cause. He presented a set of questions
intended to show that Benton was an in
innate friend Of Charley Mosher, who is doing
time for wrecling the bank; that he was a
depositor in the defunct bank, and that he
generally had such a knowledge of its af-
fairs and was on such terms with Mosher
and Outcalt that he could not be qualified to
sit on the jury.
In answer to the questions of Mr.. Sawyer.
Benton swore on his solemn oath that he was
perfectly unprejudiced and unbiased, that he
knew Of no reason why he was not competent
to serve on the jury, that he had never heard
the guilt or innocence of Outcalt discussed in
Lincoln, that he had never expressed an
opinion on the guilt or innocence of the de-
PENDANT, and that he had no opinion thereon
himself. He also averred that he had never
had an opinion Of the guilt or innocence Of
Mosher until the latter had pleaded guilty,
when naturally he believed him." He was
ready for Mr.. Sawyer at all points, but when
asked If the facts were that the defendant
was charged with the crimes to which Mosher
had once pleaded guilty, If that would have
any bearing upon his verdict, he got q little
tangled up; and Mr.. Sawyer sought to secure
his rejection as a Juror because of the fact.
Judge Dundy ruled against the governme mt,
however, and remarked that Benton being a
deposition in the broken bank, If the defense
didn't object you oughtn't. Mr.. Sawyer
made q hard fight to have Benton excused,
but Benton didn't want to be excused when
he had discovered how admirably fitted he
was for a juror, and despite the fact that he
was a depositor, and would by all natural in
stincts have 1t in for the cashier of the bank,
the defense gladly accepted him as a Juror,
not exercising the last peremptory at all.