The Montgomery advertiser., 1901-10-11
WILL FORCE A TRIAL
ABSENCE OF PowERs's W.T.
 MISSES IGNORED.
Commonwealth Attorney Franklin Refuses to Admit Truth of Testi- mony as Given in Affidavit.
 of the Defense.

Georgetown, Ky. Oct. 10.-In the trial of Caleb Powers, charged with complicity in the murder of William Goebel, when court convened at o'clock today, MT. Kinkead for the defense had not com pleted the defendants affidavit.
 The Judge said 1t was an injustice to the witnesses on both sides and a big expense to the State to delay matters unless there was going to be trial He said he wanted to indulge the defense, and would give them until 5 o'clock this afternoon to complete their affidavit. MT. Kinkead said they would try to have 1t ready by that time. The Judge then ad- journed court and ordered the petit jury and witnesses to return promptly at o'clock. MT. Kinkead denied that the de- fense was trying to cause unnecessary delay, and said they were doing their best to facilitate matters.
 When court opened again at 5 p. n., MT. Kinkead submitted twenty-six pages of the affidavit, typewritten on legal cap paper, and said that while the rest could be finished by ' o'clock, he thought the defense would probably ask more time in which to file a supplementary affidavit. Judge Cantrill said 1t would be time enough to talk about the supplementary affidavit when the other was finished
 Court then adjourned until z o'clock. When court convened at 7:30 the stenog- raphers had finished transcribing the thirtyfour-page affidavit of the defense, alleging the absence of many witnesses material to the case, setting forth their testimony and asking a continuance upon the grounds that the trial could not be properly proceeded with. If the court proceeds with the trial. 1t said, the com monwealth will of course have to admit that witnesses absent would. if here, tes- fx, t,, fha oA1 The court suggested that the common wealth read the whole paper and the prosecuting attorneys were allowed to re- tire for consultation.
 At S:15 the lawyers for both sides re- turned to the courtroom and then the court took the affidavit and retired to the consultation room to look over it. The affidavit recites that. relying upon the ruling of the court at Frankfort when he continued the Howard case upon the motion of the defense that the case did not stand for trial at that term because the Appellate Courts mandate ordering a new trial had not been properly filed, the defense has not exercised the dili- gence in getting ready for trial that would have been exercised had not Judge Cantrill so ruled. The affidavit contains about 12000 words
 Judge Cantrill returned at o'clock and
 
 first to speak on the affidavit. He touch- ed upon the fact that Powers has had the misfortune to have lost several of his attorneys and had secured new ones only few days ago
 MT. Franklin. for the prosecution, said ample time had been given the defense and amplified his argument
 Judge Sims. of the defense. said:
 "The defendant has sworn that he be- lieves that the full effect of the testimony of those absent witnesses cannot he given unless they are examined orally and the ends of justice demand that this young man on trial for life be given chance to get the full benefit of this testimony"
 The court overruled the motion. The defense then asked for the admission of the truth of the testimony of the wit nesses now absent as set forth in the af- fidavit
 We do not admit It." said Mr Frank lin.
 Call the jurors" said the court, and the case proceeded
 Three men are accepted temporarily as jurors. Judge Cantrell then adjourned court till tomorrow