Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1908-12-06
Frank Graham Thinks Davis Was in
Room When Tragedy Occurred.
DEFEEsE's MOTION IS ovERRULED
Refuses to Order Verdict Not Guilty
for insufficient Evidence.
ENGLISH SCORES DAVIS BROTHERS
County Attorney Rebukcs Fred n.
and Latham Davis for Laughing
at Questiops He Puts 10
One witness.


trial on the charge Of murder In the first
degree for the alleged killing q Or. Fred
ericF Rustin September p came TO the
crux Of the case yesterday in the district
court when his attorneys submitted Their
albi testimony and at noon adjournment
was taken 70 Monday morning.
This sllbi hinges chiefly on the statement
Of Frank Graham, a clerk in the Omaha
National bank, who rooms al The Chatham,
where Davis roomed at the time OF the
tragedy.
Graham's story is that he went into
the toilet at the Chatham about s:45 the
morning Of the Rustin tragedy and saw
evidences that someone had vomited there
and the next day he learned that similar
evidences had been discovered in The room
Of Davis, and, though he did not see
Davis, nor ascertain whether ne was In his
room al that hour in the morning OF not,
he concluded Davis was the who did
the vomiting and therefore could not have
shot DR.. Rustin, who is supposed TO have
been shot about that hour.
Many other roomers of the Chatham were
placed on the witness stand and testified
that they had not done any vomiting that
/ night morning.
! The theory of the defense indicates Davis
was in his room a few minutes before
the shooting took place.
Harry B. Zimman, councilman from the
| Third ward. also gave testimony for the
| defense when he testified he had seen Dr.
| Rustin at Fourteenth and Farnam streets
I at 80. o'clock the morning he shot
Recess Until Monday.
When court adjourned at noon Saturday
Judge Sears announced no afternoon ses-
sion would be held and witnesses were eN-
| cused until Monday morning Mr.. Wood
rough said the defense sill mad fifteen wit
nesses to examine and the state has sum
| moned a number in rebuttaL II is believed
it will take most Of the day Monday to
hear the rest of the evidence and IL is
probable the case viii not go to the jury
until some time Tuesday.
Frank K. salyards. night watehman
on West Farnam street was the first wit
ness. He had previously testified for the
state. SaiyHrds said as he was going home
| the night Of the murder he saw woman
who bore strong resemblance TO Mrs
Rice standing the corner OF Fortieth
and Farnam streets. This was at l:lO
o'clock when Mrs Rice says she was at
the Gleason rooming house.
County Attorney English subjected him
to close cross-exarnination, during which
the county attorney called Down Latham
Davis and Fred II. Davis brothers OF the
accused, whom he charged with laughing
during the examination Of witnesses
There seems TO be a good deal Of hilar-
ity here" said Mr.. English "a the court
Il don't think men should be allowed TO
sit here in the presence Of the jury and
indulge in laughter at the questions pro-
pounded.
Points 20 Davis Brothers.
While he salc this he pointed to the
Z hrp bRr x~h Eft M
defendant. Judge Sears said he did not
. see what had happened.
Il just wanted to call il 10 the attention
of the court" said Mr.. English and he
went on with the examination.
salyards also said he had talked to Ben
, jamin A. Pease another night watchman.
and he had told him he saw no one walk
, Ing down Fa-nam street that morning.
William McCaulley, motorman on the car
, taken by salysrds al the time he testified
, he saw the woman. said he talked with
the conductor the next day and they de-
J Cided they had seen woman walking
south on Fortieth street, between Farnam
; and Harney.
Officer Van Dusen also testified Watch-
man Pease had told him he had seen 10
one that night. He also described a flower
bed which surrounds the Rustln porch. He
said he had seen no foot prints on the
flower bed the day after the murder. This
evidence was offered 10 show that who
ever shot DR.. Rustin could not have es-
capped the gaze Of the witnesses who were
awakened by the shot by jumping over the
] railing Of the porch.
Councilman Zimman testified he was
{ standing al the corner OF Fourteenth and
70 Farnam streets al 80 when Dr. Rustin
came along going west Farnam. DIT.
Rustln he SAID. spoke 70 him.
{ Puts Zimman on Rack.
County Attorney English went after the
t councilman rough shod IN the cross-exami-
S nation.
e Were you not asked this question at
1 the preliminary hearing. Are you certain
] YOU saw Dr. Rustin that night and did
Z you not answer. I am almost certainT
3 Mr Zimmau admitted he had answered
the question in that way. He said he was
more positive now since he had seen the
o man be was with that night.
Who was the party you were within
> Il won't state his name"
1 why won't you state his name"
l u promised not to give his name"
u Leading up 10 the supposed alibl II. L.
% Plumb, manager Of the Chatham, described
: the location Of the rooms and gave the
a names of the tenants in the south apart
- ment In which Davis ro0med. The pr.nci-
= ! pal evidence 70 confirm the alibi was given
! By Frank Graham. Graham said he went
TO his room about u.8o O'Clock. went u
the toilet and then back 20 his room. He
T. III his pipe intending 20 smoke but went u
sleep He awoke and looked al his watch
!, 10 see how long pc had been sleeping and
found IL was IS minutes before
: !, o'clock. He went 10 the toilet and found
some one had vomited on the floor Jus,
as he was getting into bed he hea 4
p clock strike three O'Clock
He was followed by Nina Carter 4
ehsmbermaid at The Chatham, who testi.
. fled the only room in the apartment Ia
which she found evidences Of vomiting was