Omaha daily bee., 1905-10-31
DOYLE.BURNS HEARING ON
Evidences introduced to Show Misconduct Of
Jury in Former Trial
APPEARANCE OF BURNS IS WAIVED
Deposition 60 BE Taken at some Point
in Colorado TO be Mutually
Agreed Upon and Sub
mitted to Court.

The hearing of the application Of the
plaintiff in the big Colorado mining suit
Of James Doyle against James f. Burns,
former president of the Portland Gold Min
ing company, for new trial was begun
before Judge Thornell in the district court
yesterday morning. As court did not con-
vCne until $780, little was done at the
morning session and the greater part of
the afternoon session was occupied with
the reading of the affidavits filed by the
plaintiff in support OF his application
]. ]. Ferguson. one of the court report
ers employed during the last trial. which
resulted in a verdict for Burns was
placed on the stand on behalf of the
plaintiff and he testified to hearing Juror
Kiersch make a statement during a recess,
in the presence of the other jurors that
the suit ought never to have been brought
in Pottawattamie county. as neither Doyle
nor Burns paid taxes here.
| Constable Lee Albert was placed on the
stand and examined as to his affidavit, in
which he swore to hearing W. b. Fisher
make statements derogatory to Doyle in
the presence Of some OF the Jurors in a cer-
tain salohn Albert stuck to his original
statement, and the defense then placed
| Sheriff earning on the stand. Sheriff Cam
ming was directed by the court at the time
OF the reports that the defense was employ
ing Fisher and others to circulate deroga-
tory reports concerning Doyle to make on
/ investigation. which he did. Canning tes-
! tilted to making the investigation and hav-
| ing a conversation with Albert, during
which he said Albert told him that Fisher
made the derogatory statements in the
! saloon, but none of the jury was present
at the time
! These were the only witnesses placed on
| the stand yesterday.
! An agreement was reached that in con-
/ sideration OF Burns entering his voluntary
appearance and consenting to go TO trial
at this time on the application, he might
file afidavits of himself and F. G. Peck
J in resistance to the application, the plaintiff
: waving the right to have them appear in
open court. The agreement further pro-
vided that Burns and Peck should be cross
examined and re-examined on the affida-
] Wits before a commissioner at some agreed
Z place in Colorado and that when such
I cross-examination and re-examination shall
have been forwarded to the clerk of the
1 court here the motion shall be finally sub
mitted. although counsel on both sides will
be permitted to file briefs
The defense reserved the right to move
to require the plaintiff to elect under what
section of the code he would prosecute the
motion or petition filed October l6.
! 1t was stated yesterday that the defense
would not read its counter affidavits in
4 open coifrt, bit merely submit them with
1 the other evidence. Attorney G. s. Wright
will open~ the argument for the plaintiff
and will he followed by Ex-Governor
Thomas for Burns. Attorney Giles will
| then speak for Doyle and will be followed
by Congressman Smith for Burns and John
N Baldwin will close for the plaintiff.
with the exception Of the fling Of briefs
and the cross-examining of Burns and
Peck in Colorado the hearing in open court
will be completed this evening.