The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1899-12-07

AS foreshadowed in The Tribune on
Tuesday, the defense in the Mayheld
burglary case consists mainly in an
effort to reduce the grade of the crime
to statutory burglary, for which the
maximum penalty is four years inn
prisonment and $500 fine. If common
law burglary is proven a penalty of
ten years and $1,000 fine may be inn
posed. If the verdict is one of statu-
tory burglary and the prisoners are
sentenced now they cannot be given
the full term of four years, as the
law requires that a prisoners sem
tence must so run that 1t shall expire
in the summer time.
The fact that the defense offered no
testimony entities it to make the last
address to the jury. Mr.. O'Brien will
do the summing up. 1t is generally
expected that he will intimate to the
jury that his clients had nothing to
gain by going on the stand and telling
who they are and what their business
was around Carbondale on the morn
ing following the burglary, and then
argue that the Commonwealth has
failed to prove beyond a reasonable
doubt that the defendants belonged to
the party that robbed the Mayfield
power house. The story the prisoners
have held to all along is that they
met by accident in the Carbondale
yard at different periods of the early
morning, some of them joining the
party after the train had started.
Gaughan and Cummings are the only
two who admit they knew one another
before that morning.
PROSECUTION RESTED.
The prosecution rested at 355 o'clock
yesterday afternoon, after having pre-
sented one of the most complete, log
ical and connected stories of "a crime
that was ever unraveled from the
witness box in the I.ackawanna
courts.
Mr.. Kelly forthwith moved the court
| to compel the district attorney to elect
the count Of the indictment upon
which he would ask a verdict alleg-
ing that the second count, statutory
burglary by breaking in and the third
count, statutory burglary without
breaking in, were inconsistent with
the first count, common law burglary,
in which it is essential that the burg
IL
house.
| Judge Edwards announced that
there was no evidence, as he viewed
the matter then, on which to rest the
| charge of common law burglary, and
| that he would probably charge the
jury to that effect. He would not,
| however, compel the district attorney
to elect which charge he would press
until after the defense had closed.
Messrs. O'Brien and Kelly held n
short whispered consultation and then
Mr.. OBricn called out THE defen-
| dants rest
Judge Edwards then listened to ar
| Suments on the question of whether or
! not the bunk room over the office in
the power station made it a dwelling
house within the meaning Of the law.
| undaunted by Judge Edwards an
nouncement that he was of the opin-
ion that the evidence had not shown
the premises to be a dwelling house.
within the definition of the law, Mr.
Jones proceeded to prove it was and
cited a long string of authorities in
support Of his contention.
MR.. JONES' ARGUMENT.
| CIldTdCIer
a dwelling house, Mr.. Jones argued.
ana becomes such in the eyes of the
law under the following circumstance
es' A store In which a watchman reg
ularly sleeps; the room of a guest at
Hotel even though he is a transient
guest any premises having internal
communication with apartments under
the same roof which are occupied az
| sleePlhS apartments. He also con-
tehoed that the court should define
what a dwelling house is under the
law and leave it to the jury to say
whether or not the premises in uues-
ton meet the definition.
MT. helly argued that the only oues-
.ioH on Whlch the charge of common
law burglary hinged was whether or
not the power station was a dwelling
mouse ~ could not be such, he said,
unueF the reading of the very indict-
nIent ITSELF which used these terms
Csed as power house and a dwelling
mousse py the Carbondale Traction COM
pany, a corporation, etc." A corpora
tlon' Mr.. Kelly averred, was so con-
stituted physically that it could not
very well be accredited with a dwell
Ing.
| Werf
IN the habit of sleeping there did not
make the place a dwelling house. WHY
did they sleep there? Racause II was
more convenient at times for them ia
stay there than to go-where? To go
to their dwelling houses.
WHAT MIR. KELLY URGED.
An engineer on the Delaware and
Hudson road might come in late TO the
round-house in Green Ridge and, rather
than walk long distance to his home
IN the darkness, he would stretch out
on a bench and sleep till daylight
would this make the round house u
habitation? Mr.. Kelly asked. If law.
yer should come back into town on ,
late train and go to his office to sleep
instead OF travelling to his home i'm IN,
suburbs, would man who burglarizet
the building in which the LAWYERS
Office was located be guilty of common
law burglary? A sleeping car is fire.
quently occupied by a party for fou
or five days on a trip to California. 70,
instance, yet no one would hold the cal
to be his habitation. A booth Or tent
at a county fair have been held by th.
courts not to be a dwelling house. II
the present instance, Mr.. Kelly pointe,
out. the men who slept in the bunk.
room in the power station at Mayfielt
would be found registered as voters In
Carbondale, Jermyn, or wherever els
they happened to hail from. 1t is SAT
to presume. he said, that none of then
ever voted in Mayfield borough on the
strength of their occupancy of the bunl
room in the Traction company's powe.
house. dwelling house is a plac;
where a man lives. 1t is his habita,
tion and no man can have two habita.