Daily inter mountain. [volume] (Butte, Mont.) 1881-1901, 1900-04-28
Motion For New Trial Will be
Decided Next Week.
THE JURORS
Judge Cullen Discusses AffidavitS and
Their MakerS-Their Work
Was Crude.

The motion of the Butte e. Boston
company for a new trial in the Michael
Dewitt ease will not be decided before
next week at least. The arguments We're
concluded in the United States court at
noon today and Judge Knowles immedi-
ately adjourned court until next Tues
day morning.
When the Inter Mountain went to press
yesterday afternoon a subpoena had been
issued for F. w. Graft, an operator at the
Rocky Mountain telegraph office, who
had received the message from John
MacGinnis to the Helena Independent.
Mr.. Graft identified the dispatch and said
it had been signed by Mr.. MacGinnis.
, Mr.. Cotter then resumed his argument
and Judge Cullen followed. He said that
the other side had left no stone unturn-
ed in their efforts to secure a new trial.
Referring to the matter of MacGinnis
treating the jury in Helena. he said that
even here in Butte, the center of civiliza-
ton of Montana, people had oeen known
to take a drink.
Judge Cullen resumed his ume
this morning referring particularly to
the affidavit of j. P. McCabe relative to
the treating of the jurors during the
progress of the trial by Sam McMurran,
an agent of the Montana Ore Purchasing
mpa and also as to the alleged con-
versation of McMurran with Juror Kenck
in which the former had inquired if the
jury could be Influenced for the Montana
Ore Purchasing company for a monetary
consideration.
Judge Cullen said that McMurran
would be a poor man to be trusted with
business of a confidential nature if he
spoke as he is alleged to have done. Me-
Cabe. who made the affidavit, Judge Gull
len said. was very much like Hannigan,
another affidavit maker. Plutarch in his
of similarity-or dissimilarity-of the
characters. but had he been writing the
lives of these worthless, said the judge,
he would probably nave written that
McCabe could hold more whisky than
Harrigan.
Juror Perrett in his affidavit sauarely
denied all the accusations. He says he
had no conversation with McCabe who,
he says. owes him $500. McMurran also
denies that he ever drank with Perrett
and never said anything about the prob
ability of his doing business with the
jury: I'm fact said the judge, cit looks
as if Mr.. McCabe might nave been out
for the stuff himself" Judge Cullen also
read all the counter affidavits relative to
McCabe's reputation for truth. honesty
and integrity in the community where
he resides. Among the afidavits was
one from Ben E. Harris of Butte, who
said he had known McCabe for twelve
years and knew his reputation to be bad.
VINO sWears to the character of Har-
ris?' asked Mr.. Forbis.
THAT makes no difference" replied
Judge Cullen. "If there was anything
against the characters of the parties
h made these affidavits the plaintiffs
would have produced it.
Judge Cullen said that the story told
by the makers of the %afidavits for the
plaintiff was so ridiculous tina it was
not worthy of credence. The idea Of
people about to corrupt a jury setting
about 1t in such a crude way was pre-
posterous. The charge of treating was
nnited to the one instance in Wood
mans cigar store, where a juror took a
cigar from McMurran's pocket. Where
one side entertained a jury without the
conse mt of the other side there was
GROUNDS tor a new trial. but there We're
we'll founded exceptions.
Judge Cullen then cited several cases
one a murder case. in which the iury had
peen entertained by the prosecuting at
torney and an effort had been made IN
upset the verdict. The case of Bradshaw
W.. D~esenhart of Drummond, in this
state. was cited, in which the plaintiff
invited the jury n officers to take a
drlnk at his expense and the supreme
court refused to upset the verdict. hold
ing that the casual manner in which the
treating was done negatived the matter.
Coming down to the affidavit of Eus-
tace Wheeler, an alleged member of the
bar, Judge Cullen said it needed no COM
ment. Mr.. Weed had stood up here in
court and made his own denial. The two
a~ffidavits of Mr.. Weed and Wheeler
should be submitted to the next
grand jury and one or the other pun
ished for pejury. He called attention ia
the ridiculous assertions of Wheeler.
When a man had committed an offense
against the laws of the state he does not
confess it, and he had too much conf
dence in Weed to believe that if he con-
templated such a crime he would confess
it to a man like Eustace Wheeler,
Referring to McDougall's affidavit
about overhearing one juror say to an
other that he had a dream the preceding
night about how the jury would stand.
Judge Cullen said that there was moth
ing in it, and that the gentlemen were
welcome TO all they could get out of it.
He characterized it as a harmless con-
Versation.
Coming down to what the plaintiff
considered the most important feature
as a ground for a new trial-the news
paper accounts of the controversy
Judge Cullen said the only article to be
considered was the finding of the court
in the Pennsylvania case. It was true
he said that some very vigorous COM
ments We're made by the Independent.
but it had been shown that the defend
ant Montana Ore Purchasing company
had no interest whatever in instigating
the newspaper articles. Yesterday the
plaintiffs had induced the court to sub
poena two telegraph operators 20 show
that the articles emanated from John
MacGinnis of the Montana Ore Purchas-
ing company. 1t was shown that the
only article that might at all be consld-