Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1907-01-10
JURY HAS MODISETT CASE
Rstires to Deliberate at Supper Hour, but
Fails to Agree During Evening.
NOT MUCH TIME TAKEN IN ARGUMENT
Only Testimony wednesday Was OF
Land once Register Relative to
Entrymen showing Actual
Residence on Land.

hehlOehce on
The arguments in the Modisett land trial
began before the jury at II o'clock wednes-
day The case went to the jury just before
the supper hour and had not agreed on a
verdict during the evening.
District Attorney Goss opened the argu-
ment for the government, directed his re-
marks generally to the subject Of con-
spiracy and undertook to show that con-
spiracy had existed between Albert X.
Modisett. H. c. Dale and W. c. Smoot to
defraud the government out Of title to GER
tain lands by means of false, fraudulent
and fictitious filings He dwelt at some
length upon the subject Of perjury and the
several acts of the defendant to suborn
perjury to secure Indians to make
fraudulent filings within the Modisett range
The only testimony produced during the
forenoon was the introduction of a circular
letter from Bruce Wilcox, register of the
United States land office at Alliance under
date of November 9, 1904. relative to the
necessity of entrymen and women making
an actual residence on the land in order to
perfect title or the entries would be can
celled A letter was produced written by
A. r. Modlsett to Mrs. Sarah Allen urging
her to came out and establish her residence
on her claims, and stating that visiting
the land once in six months would not
answer in future. An endorsement on the
letter which was returned to Modlsett said:
Mrs. Allen says you must be chump to
think she would live out there year. She
wants to know how much you will give her
for her claim"
Testimony of Character.
F. H. Black of Rushville testified to the
| ,Iaa,r nf ID n.
Dale and w. C. Smoot.
Frank Going was called in rebuttal rela-
tive to the testimony of w. c. Smoot
! wherein the latter said that he had given
the Modisett letter soliciting Indians to
| file on lands to Going to interpret to the
Indians. Going said on this point:
| II do not remember of Smoot handing
me any letter, nor do 1 remember inter-
preting any such letter to the Indians,
neither do remember ever seeing such
letter from Modisett"
The defense rested at 10 o'clock and the
jury was excused for an hour until counsel
could present certain law points relative
to the elimination Of certain Of the seven
teen counts of the indictment on which the
trial was based. The government elected
to stand upon all but four of the conspr-
acy counts and all of the subornation Of
points were further discussed and the jury
was recalled.
The defense then made the usual motion
that the court direct the jury to return a
verdict OF not guilty for each of the three
defendants The motion was overruled and
tthe argument began. Mr.. 0oss leading for
the government He spoke only forty-five
minutes.
| Last of the Arguments.
w, F. Gurley of counsel for the defense
finished his argument at 3:15. His argu-
ment throughout was to show that no
evidence of a conspiracy had been pro-
duced by the government, and that there
was nothing in the testimony whatever
that connected II. c. Dale or w. c. Smoot
with the alleged conspiracy. Neither, ac-
cording to his argument was there any
thing IN the evidence produced against A.
r. Modisett to show any conspiracy or
collusion with any one to do an unlawful
act.
Mr.. woodrough of counsel for the defense
did not participate in the argument.
Mr. Rush made the last argument for
the government. At the outset he dis
cussed the law and definition of conspiracy
and subornation of perjury and undertook
to show where the trio had entered into
! a corrupt agreement in securing fraudu-
lent filings with the evident intention OF
the later requirement of the land by
| Modisett. Each of the three parties were
participants in this conspiracy and there
was a perpetual understanding between
them" said Mr. Rush, Ito defraud the
government out of title. use and posses
: sion of this land"
Judge Charges the Jury.
Mr.. Rush concluded his argument at 4:20
and Judge Munger at once proceeded to
deliver his charge to the jury. The charge
was an elaborate and careful exposition
, of the homestead laws, and the law against
, conspiracy. THE agreement to enter into
conspiracy is not of itself a crime" said
Judge Munger, unless an overt act is com.
mitted in conformity with that conspiracy
by one or more of the conspirators The
! agreement and the act effect the compile.
ton OF the conspiracy. In the matter OF
the homestead laws the essential require
. ment is that Of good faith in the perform,
ance OF all the requirements of that law
and particularly as relates 10 residence
! BY residence is meant the iEtent to max,
! home on the land to the exclusion of
home elsewhere. Up to December, 1903 tn,
laws Of the land office did not require tn,
actual residence of the widow Of a soldier
on the land she had entered. This was
however, changed In December. 1903. anC
: the act of residence was required. Parties
: entering land have TO rely upon the rule
: of the Interior department for the Lawful
requirement of the land. 1t is not un
lawful TO lease the land and have il cult
waited by the lessee If for any good an,
: sufficient reason he is unable to remaiI
upon the land. But he must first establish
I a bonihde residence thereon. Under tn,
: land ONCE regulations the entryman may
in arid sections, lease the land for grazinl
purposes, but he must in no instance ente
into any agreement TO ALLEVIATE the Ian,
before he has complied with all the law
OF settlement and received a patent there
for. A person cannot enter piece OF Ian,