Albuquerque morning journal. [volume] (Albuquerque, N.M.) 1903-1926, 1907-10-02
MOVE TO FREE
BORAH FROM
CHARGES
WILL DECIDE
QUESTION TO-DAY
Defense Asserts Government
Has Failed to Make Probable
Case and Moves Defendant
Be Acquitted Forthwith,

Boise. Idaho, Oct. II Judge Whit
son, presiding at the trial of United
States Senator Burah will decide to-
morrow morning at 10 o'clock
whether or not the case shall be taken
from the jury and a verdict of ac-
quittal ordered by the court. AT the
conclusion Of the governments cas-
for acquittal on the grounds that no
evidence tending To onnec Borah
with the land fraud conspiracy had
been adduced. The motion was ar
gued AT length by Special Prosecutors
Rush and Burch and by James IL,
Ha wiley for the defense. senator Boz
rah's counsel waived the opening ar
gument on the motion and MI. HaWlcy
declared he would not have spoken AZ
an had it not seemed to him hat the
governments counsel had either In
~tentionally or unWittedly misinter-
preted much Of the testimony before
the court. The jury WIS not present
during the argument.
Mr.. Rush in the opening argument
for the government said there GER
tainly had been tangible evidence OF
conspiracy on the part OF a Few per
sons at least. and in this view Judge
Whitson said he coincided. The evil
dence against Borah was circumstan-
tial. Rush stated. but IL tended to
show the defendant had acted in con-
cert with the other alleged conspira-
tors to the extent. at least. of recelv-
Ing in his office deeds resulting from
fraud n having these deeds re-
corded at his own request. h act o.
the defendant. Mr.. Rush assorted
placed him in the light of one VINO
receives stolen property and required
an eXplatiOn. Burch also urged that
there were enough suspicious circum-
stances to put the defendant upon his
answer. and argued that an attorney
had no privilege above an ordinary
citizen of the United States. Ihe
whole scheme Of acquiring lands. MI
Burch declared. reeked with fraud
which the defendant as an attorney
must have known OF. Whether n
government had made a strong case
he concluded was not the question
but the court should inquire only y
there were facts tending 10 establish
the theory Of possible guilt.
Mr.. Hawlev In replying charged the
opposing counsel with an entire mis-
apprehension of the law. tie Satu
they we're proceeding ON theory that
Tho defendant must prove himself in
uoc.nt rather ihan that the govern
ment should prove him guilty. Every
urosumption i'm evidence must be III
favor of the defendant. Every ACT 90
porah's to which h evidence mao
alluded was shown TO be open an"
above board and in pursuance OF non
pstv of roc Every step taken ny
Tho defendant was "A roper acton o.
an attorney protecting the Interests 81
his cltcnt and was suce-tiblc or no
other Interpretation. Mr.. HaWle
claimed the evidence of the govern
mcnt's own witnesses was 20 the elet'
that Borah always announced ne was
acting a%sattOrney and that his desire
was 10 protect his clients, the Barutr
Lumber company, from secul''N
claims tainted with fraud.
Al the conclusion Of the argument
Tudpe Whitson announced he would
take the matter under advisement AND
render his decision tomorrow morn
ing