The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1898-02-06
THE CASE OF ROSENBERG
STRENUOUS EFFORTS OF HIS ATTOR-
NEYs TO GET A NEW TRIAL.
The Argument over the Journals
Story, Which, 1t Is Claimed,
the Jury Read.

IN the CRIMINAL court, yesterday, 2rgu-
ment was heard on the motion of attorneys
Herod & Herod for a new trial in the case
Of Max Rosenberg, who was convicted of
higamy on the evidence of Blanche Louise
Mitchell, a Chicago theatrical woman and
sent to the county jail for six months
Judge McCray after hearing both Sides
announced he would give a decision on
Tuesday next. !
The affidavit for a new trial was based in
part on an article printed in the Journal
while the case was on trial in the Grim
inal Court in which Miss Mitchell, the
prosecuting witness, told of strange in
fiuence which had been exerted over her by
Rosenberg, and in which she declared she
was Led into a marriage with the accused
without her consent. The Journal story
also contained letter from the superin-
tendent of the Philadelphia county prison,
in which he claimed to identify Rosenberg
from a photograph as a former inmate of
the prison. During the trial an offer was
made by Attorney Thornton. who was rep
resenting the state, to introduce this letter
as evidence, but it was excluded. On the
following morning the letter was printed in
the Journal
Attorney Pirtle Herod, who spoke in sup
port of the affidavit for a new trial, called
the attention of the court to these facts.
1t was maintained that the Journal story
was discussed by the jurors while they were
engaged in making verdict, and it was
averred there was no reason why the Jurors
should not have familiarized themselves
with the contents of the Objectionable let
ter, as it was presumed they all read the
Journal. On the question of the alleged
marriage between Rosenberg and Miss
ahaIl
law points. 1t was commended that while
the judge and the clerk OF the Cook county
Circuit Court properly certified to the mar
riage license and to each others official ca
pacity, there had been nothing to show that
the man who performed the alleged cere-
mony was a justice of the peace. Again, it
was contended that the state could not
claim common law marriage, because
there was no evidence to show that either
Rosenberg or Miss Mitchell had entered into
an agreement to live together. The actress
had testified that she started out to walk
with Rosenberg under his umbrella. They
discussed commonplace topics and there
was no proposal of marriage on the part of
6NoseHperg. me woman was LED INTO an Of
nee, ana, before she was aware of what was
taking place, she and Rosenberg were de-
clared husband and wife. Referring to the
Journal story, in which Miss Mitchell inti-
mated she was under a hypnotic state, Ro-
Senberg's counsel contended there could be
no marriage if the woman was mesmerized,
for she would be poWerleSS to give her con-
sent.
On behalf of the state, Mr. Thornton ar
gued there was abundant evidence to prove
the first marriage. He insisted that Miss
Mitchell had testified she and Rosenberg
went before a man who professed to be a
justice of the peace. He performed mar
riage ceremony and gave Rosenberg mar
rlage certificate, which the latter placed in
the hands Of the woman: Rosenberg intro
duced Miss Mitchell as his wife and lived
with her as her husband at a hotel and at
her mothers. 1t was claimed Rosenberg
and the woman had a conversation at the
Great Northern Hotel about getting di-
vorce. The attorney maintained that had
there not been q marriage, this conversation
would not have been held. Rosenberg, it
was further claimed, admitted to Detective
Gerber when arrested, that he had been
married. Attorney Thornton insisted that
was properly admitted as evidence. He
held that the defense must show what jul
rorS read the article in the Journal as the
charge in thesaffidavit on this point was too
Indefinite Tt was held that Rosenberg in
his affidavit could not swear that either of
his counsel knew of the Journal article on
could swear as to what another person did
not know. Mr.. Thornton asserted that
neither of the Messrs Herod dare put their
affidavits on file setting. out tnat they did
not know of the Journals publication when
court opened ON the morning of the second
days trial If they knew or the article,
then they should have at once moved the
court to stop the trial and discharge the
jury: for they could not speculate on the
result of the trial. and, when defeated.
come forward and complain of this article
and the conduct of the jury.
The prosecution, at the beginning of the
argument, wanted to examine Rosenberg
and show by him that he knew nothing
about many of the statements made in his
affidavit. The court took this matter under
advisement until next week. The states at
torneys then declared they would insist on
the right to call the Jurors and examine
them, no matter what the courts ruling as
tn the prisoner might be