The herald., 1898-05-20
nIEJCALFf CONVICTED
~ ~ AssAuLT WITH ADEADIx
w1APoN
Jury CASTS bvT ONE BALLOT
10 Stook Taken in ones-io y jeopardy
11sar-Hswill Be Sentenced
ON Monday

II. w. Metcalfe, the man or
trial In Department One Of thu
superior court on charge OF
having assaulted r. J. Day Of Council
Bluffs, with heavy. cane his intention
being to kill him, took the stand yesterday
In his own behalf. He testified that he hao
read an article in the telegraphic columns
Of the local papers, dated Council Bluns
which severely reflected upon his integrity
This was in January last.
MI. Bacon, of counsel for the prosecu-
tion, intimated that II the defense proposed
to enter into these matters. 1t would be
proper for the people to prove that the
chxrges against the defendant made in the
article were absolutely true. The court or
dered the article read. 1t was to the effect
that Henry Metcalfe had stolen from the
safe of his deceased brother $21 900 worth OF
notes subscribed by himself in favor Of this
brother and that Mr.. Day. administrator
OF Metcalfe's deceased brothers estate,
was coming to Los Angeles to obtain resti-
tuition. The article also mentioned that
Henry Metcalfe had claimed that the notes
were merely accommodation ones, and that
be had perfect right to take them.
Continuing. the witness said that he had
heard OF Days arrival in this city, but did
mot know the purpose OF his visit. when
met him at the corner of Spring and Third
streets I knocked him down with this
cane" stated Metcalfe. pointing to the
weapon. II struck him only once. called
his attention before I struck him. I was
angry. I had no intention Of killing Day.
had expressed myself to Mr. Goss as to
what intended to do before the assault
occurred. think could have killed Day
at the time If had had gun. own one
but never carry 1t. It was In my office,
and had left 1t there. happened to have
loaned 1t to a friend, who brought it back
ON that very morning. put 1t in my desk
and locked 1t UP. On the day Of the assault
was not hunting for Day, nor did expect
to meet him. 1 met him accidentally. After
striking him held the cane in my hand
untfl was arrested. I admit that held
II up In a raised position, but it was not to
strike Day any more. 1t was to protect
myself against Mr.. Conger. who had as
sumed. a threatening attitude"
When the defense had presented all the
testimony at its command and the prose-
cutfon rested Its case, the jury was ex-
cused In order that the plea "once In jeop-
ardy. of the defendant, might be argued
and answered by counsel. 1t will be re-
membered that Metcalfe was fined 500 by
Justice Owens for battery on a charge
sprInging out of the same assault on Mr..
Day. and the defense believed that their
client should not have been tried again.
At the close of the argument the court de-
clined to give q decision, but thought 1t
proper to let the case go to the jury which
was then recalled. At 4:10 o'clock Judge
Smith having ended the reading Of his in
structions, the case was given to the jurors,
who returned in ten minutes with ver-
diet of guilty of assault with deadly
weapon, and that the defendant had never
been in jeopardy. by reason Of his previous
conviction for battery. Only one ballot
was taken. Metcaife will be sentenced
next Monday