The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1901-12-04
new TRIAL DENIED
Judge Gephart Hears Attorneys
in Klusmire Case.
Sentence Will Be Pronounced
On December 81.
Case Will Be Taken to Supreme
Court.

Oskaloosa, Kas., Dec IA motion for
new trial in the Klusmire murder
case has been overruled by Judge Gep-
hart
All of the lawyers on both sides were
present in the court room when court
convened Tuesday, and Attorney Sidney
Hayden, of Holton, made the speech for
the defense in argument for new trial
He gave in the course of his remarks
about twenty reasons why a new trial
should be allowed. He said that of
course time had not permitted a tran
script of all the testimony in the case
TO be made, and accordingly he was
not able to speak from memory con-
corning much of the testimony in the
case, but there were some matters upon
which he spoke at considerable length.
One thing was his serious objection to
the admission of the testimony of the
physicians as experts on behalf of the
state. and he stated that rule had
been tranSgreSSed when these physi-
clans, DrS. Tucker and Jermane were
permitted to invade the province of the
jury by making statements concerning
the effect of certain bruises-matters
which he claimed should have been left
with the jury.
He spoke also of what he considered
an error in the rebuttal testimony. He
stated that Drs. Tucker and Jermane
were questioned in regard to the exam
nations which they had made, and at
the close of their testimony were asked
if it included everything concerning
which they had examined, and the re-
Spouse was in the affirmative.
Mr.. Hayden then said that the de-
Tense had brought DIR. Dean on the
stand, and he testified that he had
found the larynx in a cola psed concli-
ton, resulting as he thought from some
harsh treatment.
Now" resumed Attorney Hayden,
''Drs. Tucker and Jermane were al
To crix rnN foI tocf to-
gard to an examina ton which they had
previously been given an opportunity
to testify in regard to, but which they
had not mentioned. They were asked
If they had examined the larynx and
responded that they had, and were al
lowed to testify that they had exam
ined it by taking 1t up between their
fingers. This 1 consider is an error, be-
cause they had failed to mention it
in their first examination"
Further the attorney stated that the
state had failed to show that there was
any evidence of malice in this case of
Klusmire; that even if the theory of
the state were true, 1T could have been
only manslaughter in the third degree.
There were other matters of which
Mr.. Hayden spoke-one being, he
said, the failure of the court to have
the verdict from the jury received in a
proper way, saying that possibly it
might seem small matter, but he cited
several instances where the supreme
court had reversed cases upon matters
which to a layman would appear as
trivial for instance, one case was re-
versed because the statutes were left
in the jury room over night; another
case was when the journal of the court
did not show that the bailiff had been
properly sworn.
He said in conclusion that there were
many other matters which he might
enumerate and many other items, but
that these which he had mentioned
were the principal errors upon which |
they expected a reversal of the case.
Judge Gephart then made few re-
marks wherein he stated that he re- |
garded this as a very important case, |
and had consequently given it a great |
deal of careful thought, but that in his |
Judgment no errors had been made, and |
that he overruled the motion for a new |
trial.
County Attorney Graham of Jackson |
county then asked that the court defer |
The sentence until January 2, this was |
allowed with the execution of the |
change of date to December 81. This |
will give time for transcript of the |
testimony in the case to be made.
Klusmire. who was present in the
court room presented a rather I'M
kempt appearance and he looked as If
ne had not been shaved for some time;
ne appeared weary. downhearted and
1iScOura ged