New-York tribune., 1907-04-09
SEALED VERDICT In.
ONE JUROR EXCUSED.
Counsel in Gold Cup Case WaiUe
Right to Sam Up.

The case Of the Memphis Trotting Associa-
ton against Elmer E, Smathers for the recOv-
cry of the gold cup Won by his horse, Major
Delmar, at Memphis, in October, 1904. which
has been on trial before Justice Greenbaum. IN
the Supreme Court. was given to the jury yes
terday morning. To the surprise of every one
counsel on both sides waived their right to sum
up, and after a belated witness, who was
Thomas G. Scarborough. sporting editor of
Memphis paper. had given his testimony, which
was in relation to the condition OF Lou Dillon
on the day OF the race. Justice Greenbaum be-
gan his charge to the jury.
The Jury retired at II % a. m. and late in the
afternoon returned to the courtroom to ask for
further instructions After receiving them the
foreman stated that they stood IL to 1. and
that 1t was doubtful if they could reach an
agreement. Justice Greenbaum reproved the
foreman for making such statement and d.
rected the jury to retire.
y little while afterward one Of the jurors was
excused account OF the Illness Of his wife
and child. He evidently not the one who
was holding out against the other eleven. be-
cause after he left the jury was still unable to
agree. and Justice Greenbaum finally directed
them to return sealed verdict this morning.
They were again locked up until they should
reach verdict, or. falling 10 agree. be dis
charged at an hour named by the judge.
Shortly after o'clock the jury returned a
sealed verdict and then went 10 their homes.
In hts charge Justice Greenbaum told the jury
that the case had been simplihed 20 a charge of
fraud by the plaintiff. instead of a conspiracy
and that Il for them to determine from the
evidence whether or not a fraud had been COM
mltted. He said they must take into cOnsidera-
ton that there was great deal of horse talk
around the racetracks. and that they must de-
ternine II the statements made by some OF the
witnesses were hearsay or based facts In
referring 10 the expert testimony of several vet
erinagy surgeons at the trial. in which they
took prnD eff VII vf,o
justice said:
1T is a case where doctors disagree. but It Is
for you 10 determine which is right
He also charged the jury that II the testimony
convinced them that a conspiracy was formed
they must be satisfied that il was consumnated
before finding that the charge Of fraud was
proven.
When Justice Greenbaum had finished. Mr..
Ewing, OF counsel for Mr.. SmaIners requested
that he charge the Jury further. that one OF
the connecting links in the case was the testi-
mony OF Spears that he had told certain things
to MIR Smathers on the day OF the race. and
that IL they believed IL had been shown by the
defence that he not In Memphis at the
time. conspiracy had not been proven"
Justice Greenbaum complied with counsels
request. and so charged the jury.
The jury returned Ia the courtroom for the
first time shortly after 3 p. m. They wanted TO
know II they could assume. from SDears's tes-
timony, In which he alleged that he had con-
versatiOn with Mr.. Smathers about "hxing'' Lou
Dillon so that she could not win the race. and
from what Millard Saunders had testified TO in
regard 10 his conversation with his brother Ed
about the alleged "roping" OF the mare that
conspiracy had been formed.
Justice Greenbaum told them they could not
and they then asked for the minutes Of the
containing the testimony Of the experts
This was given 10 them The next time they
came out they wanted 10 know IL suspicion was
enough which TO base a conclusion or wheth-
actual proof was necessary. They were told
that the plantif must prove his case by a pre-
ponderance Of evidence, and IL was then that
the foreman made his statement about the
eleven TO one stand the jury had taken.