The Birmingham age-herald., 1903-06-23
Taken by the State.

brushed a number of customers during the hour that the men were talking; that he did not hear anything the men were say ing; that when he first saw Havis he was sitting on a trunk and that this was about five minutes before the shooting. He said that he did not see the start of the scuf-
 hei that Wise while talking had his thumbs in his trousers pockets: that La- them had one hand at his side and the other on his hip; that he did not see Wise striking Lathem that he couldn't identify the men while they were scuffllng as they were all mixed up together
 The witness said further that he did not see Bert Clifford part them; that he saw some one come out of the register office and part the men and that he did not know whether 1t was Clifford or not He said that he did not hear any one say. "Jud get me a gum" that he did not know what became of the man that did the separatingi that Havis was thrown to- ward himself, stopping within four feet of him; that Wise had his back to the the map case and that up to this time he had not seen Havis draw a pistol.
 The witness said that Lathem was fac ing Havis square when each shot was fired; that Lathem never Ieveled his pis- tol down on Hayis, but held 1t in front of him; that he had never rehearsed his testimony to any one and that he had never told anybody all that he was testi- flying
 In answer to further questioning the witness said that he heard shot fall on the floor of the barber shop at the time of the scuffling; that he picked some of the shot mp and that they were small. He said that he saw piece of leather on the floor afterward; that he was not in the door at the time the slungshot burst; that he did not see any instrument in Wlse's hands; that he did not see Wise leave; that the man who separated the combatants came from the register office, the place where the register is kept; that he did not know who 1t was, and that after separating them he went back to the register office.
 In answer to a question by Captain White of the defense Mcdowell stated tAal NAlC llAbl lnlhb lhdh dllidIA nlS dN~ tention to the quarrel was the rattle of the small shot on the floor.
 Robert Foster.
 Robert Foster was the next witness called for the defense. He testified that his home was at Elyton; that he worked at the Morris hotel as porter; that he was there the day Mir. Lathem was killed; that he had seen Mir Wise, MT. Lathem and MT. Havis near the ladies stairway, but that later they moved over toward the barber shop door; that this was about half an hour before the trouble, and that the next time he saw them was when het returned from the union shed. He said that he opened the right-hand door of the Nineteenth street yestibule Just In time to see MT. Clifford run Into the register office and to see Mir. Lathem stagger across the hall to a point near the map case; that after La them had reached this point he raised a pistol; that he was facing Wise who was against the check room, and that he saw Havis draw his pistol and fire. The witness said that he then ran back to the street.
 To the questions of Mir. Weakley, the witness answered that he did not hear any of they say anything; that Lathem's left side was toward him; that when La- them drew his pistol Havis stepped up and fired. and that he heard two more shots after he ran away. He said that he was at the ladies' entrance when Havis came out; that he did not have pistol in his hand at the time; that he did not see Wise come out, and that Havis went in the direction of Chalifoux's corner.
 The witness also said that he did not see Lathem pull the pistol from his pock- ct; that he first saw 1t in his hand and held close up in front of him; that the three shots were fired with a longer inter- val between the first and second than between the second and third shots, and that when Havis came out of the hotel he strengthened out his hat. looked up and down the street and started across
 To the rebuttal questions by the de- fense he said that the position of la thems hand did not change while he saw him; that the witness went in to the bar after the shooting and saw Mir. Lathem lying on the floor and that a pistol was partly under the right side of his body.
 J. P. Meroney.
 J. P. Meroney was then called by the defense. He testified that he lived at 1794 Fifth avenue: that he was 3l years old; that he was now in business for him. self; that he was formerly employed at the drug store of Mir. Reece at the corner of Sixteenth street and Fifth avenue; that he was there about eleven or twelve and that he saw Elias M. Lathem at that drug store on the morning he was killed at about quarter past eight O clock.
 At this point a number of questions were asked which were objected to by the state and the objections were sustained by the court. Among the questions were these:
 ''Did not Mir. Lathem ask you that to call Mrs. Rube over the tele- phone?'
 Did you not call her up for him?"
 Did not they have conversation over the telephone making an appointment to meet at the Morris hotel at 10:30 o'clock that day?'
 .t.