The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1898-11-30
NE uAD 1 CLOSE CALL
Witness scruples . Good Thing
for Byrne.
NOT SURE OF HIS MAN
Walter McEiroy IVES Reluctant to Send
Byrne to me Pen When He Could
Not Positively Identity HIM
- the Man.

The reluctance Of q complaining wit
ness to give testimony that might send
a man to the penitentiary unless he
felt positive OF the mans Identity saved
A. w. Byrne yesterday the i%nconveni-
ence OF standing trial for a felony. On
the night OF the 18th Of the month Wal
ter McElroy was held up and robbed
OF sl4. The next day Byrne was ar
rested as one of the holdups and was
positively identified by McElroy.
Byrne's hearing came up before Justice
Laurandeau yesterday. but in the
meantime McElroy a changed his
absolutely positive of Byrne's identity
and for that reason would dislike to see
him go to the penitentiary on his evil
depce. On the strength Of this the
case was dismissed more than on the
alibi the defendant attempted to prove.
The case was prosecuted by Deputy
Jackson n Marsh appeared for the
defense.
Walter L. McElroy. the prosecuting
witness, was first called. He said that
on the night of the 18th of the month
he met the defendant In front of his
home on Covert street. about midnight.
He had purchased a suit of clothes that
evening at a downtown store and the
defendant saw him changing money.
Later he went to the theater, n when
going home saw the defendant and an
other man following him. When he had
reached a point me door from his home
these two men commended him to throw
up his hands. They then robbed him Of
$14 and ave him a very severe beating,
from he effects of which he had been
unable to work for about three weeks.
Witness produced a purse which had
been taken from him, but which he had
found the following morning near the
scene of the robbery. Witness said
he thought the men were fooling when
they told him to throw up his hands
n did not comply and IL was this
which caused them to beat him.. Wit
ness was here asked IL he fully identi-
fed the defendant as one of the hold
ups. and he said he had felt certain
when he first saw him at the city Jail.
but he had studied the matter carefully
since and did not now feel as positive
as he did at that time. Witness said
he had seen he other holdup since on
the street and went for a policeman,
but by the time he found one the fell
low had disappeared. Witness said the
defendant answered perfectly the ap-
pearance OF one of the holdups except
for his beard. which was sandy, where
as he thought the beard of the holdup
was black.
Cross-examined, the witness was
asked II he Identified the defendant as
one of the men who saw him change
money the night Of the robbery and he
said he did not. He at last admitted he
was positive the defendant was not one
of the men who held him up.
City Detective Jerry Murphy was
called and stated hat he and Officer
Ray arrested the defendant on a de-
scription furnished by McElroy, who
said the man had a brown or dark
pointed beard. Witness was present at
the city Jail when McElroy picked out
the defendant as one OF the holdups and
was positive in his identification At
h time of the arrest the defendant
could give no account of his where
abouts the night of the robbery.
The state rested and counsel for the
defense move for dismissal. The mo-
ton was overruled and the defense
called Leonar p. Reed. a waiter at the
Casino theater. who testified to having
known the defendant a month. As near
as he remembered. the defendant was
about the theater all night the night of
the 18th. Witness said Byrne had al
ways worn a cap when he saw him and
when the defendants cap was shown
him he identified IL. Cross-examined.
the witness said he had no means of
fixing definitely the night of the 18th.
but knew the defendant was in the
theater every night. and IL was by this
he knew Byrne was in the house the
night of the 18th.
Dan O'Donnell, another employee of
the Casino, said he had seen the de-
PENDANT about the theater every night
for some time about the time of the rob-
berry. One of the employees of the thea
ter informed the witness the night of
the 18th that the kid" was in Jail for
holding up a man the night before and
witness said hat could not be. as he
had been in the theater all that night.
on cross-examination the witness said
| the defendant might have left the
theater for an hour and he not been
aware of IL.
~John V. Cunningham. a lodging house
broprietor. said the defendant was
About his house. the Cash Lodging
house. on various occasions about the
time of the holdup. He did not know
that Byrne roomed at the house. but
thought he had.
II. M. Carroll. another employe at the
Casino, reiterated the testimony of the
other theater hands. except that he
was not sure about the defendant be-
ing at the theater before u O'Clock the
night of the robbery.
The defendant look the stand and
was asked his present address. He
smiled and his attorney added. "when
you are not in jail?" He said he room
ed at the Cash Lodging house and that
NJ had heap in Rutfe ahouf five Neaks