Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1906-11-14
MUNGER DELAYS DECISION
judge HsArs Argument on Technical POint
in Richards COmstook Case,
MANY LAWYERS INTERESTED IN IT
Motion to Quash the indictment
is Next step Undertaken
by Attorneys for the
Defense.

AT the opening Of the federal court
Tuesday morning many leading attorneys
were present to hear Judge Mungers de-
cision in regard to the demurrer Of the
government attorneys 20 the plea in abate
ment presented by the attorneys for Rich
ards & Comstock, the cattle men. to the
indictment against their clients But they
will have to wait another week, for the
court has deferred the case untll next
Monday.
After disposing OF several matters Of
minor Importance Judge Munger said:
II have not had time to look over the
demurrer to the plea in aba tement but
counsel may proceed with argument on the
motion to quash tho indictment the same
as II the demurrer had been disposed Of
Mr. Gurley of counsel for Richards a.
Comstock said: IF the demurrer is sus-
tained against us we will at once file a mo.
tion to quash the Indictment"
Mr.. Rush of counsel for the government
at once gave notice Of exceptions to the
motion TO quash, which the court decided
as well taken.
GurIey Argues Motion.
Mr.. Gurley thereupon proceeded TO argue
| the motion TO quash, I'm which there were
two propositions, both Of which would be
argued as one motion.
This indictment" he said Consists Of
800 pages, of forty counts, thirty-one Of
which are for conspiracy. seven for con-
! splracy. to suborn perjury and two for
| fraudulent filings. We shall raise no point
which affects the validity of the indict-
ment, which we believe to be the absolute
/ truth. II is not alleged anywhere in the
indictment that any of the persons making
/ fling was qualified TO make entries. This
| We think is essential under paragraph 22S9
| of the United States statutes which de-
/ scribes the qualifications Of entrymen OF
public lands. The indictment has failed to
charge an offense and fails to disclose what
charge is made against the defendants.
/ 1t fails to show that the defendants con
spired to obtain use and possession OF the
lands in controversy, but to defraud the
government Of title. There is no allega-
ton in the. indictment that any attempt
was made to defraud the United States out
os title to the lands, but merely for use
and occupancy"
Step Toward Title.
Mr.. Rush-we maintain that the charge
of use and possession is an incidental step
toward getting title.
"Tho use and possession of land and the
requirement OF title are two entirely diff
ltHtAA anu ulSlllSl pIDpOelNiOnSsf IeJOlHeu
Gurley. We have the constitutional right
to know that this indictment has been
drawn with the facts before the grand jury
which drew it. This indictment was not
drawn TO meet facts In this particular case
but, from facts obtained from other cases
we will show that counts In this indiet
ment were taken from counts in other IN
dlctments that have already been disposed
Of. In many instances the indictment Is al
ungrammaticsl tumble OF words, senseies,
and indefinite, which renders it fatally de
feotive. Many OF these counts are bu
mimeograph copies Of counts which go ou
tfroni the Department OF Justice day 10y
day without regard to the facts in eacf
individual case. The counts charging per
jury are fatally defective from the fac
that they do not allege a completion of tn,
act OF perjury. The Indictment as Who'll,
absolutely fails TO charge a crime anc
fails to show that the defendants did in
tend to do certain things"
Mr. Gurley's argument was continued un
I'll the hour of closing court Tuesday after
noon and the hearing was adjourned t
$3.50 Monday Eext. Mr.. Woodrough vii
continue the argument for the defense a
that time and will be followed by Mr.. Hall
The closing argument will be made by MI
Rush for the government. The continuanc
OF the case is made I'm order that Judg
! Munger may consult the authorities in tn
case Of which there are a vast number.