Evening star. [volume] (Washington, D.C.) 1854-1972, 1908-09-14
RUST|N'S HAT MISSING
Like Pistol With Which He Was
Shot, Strangely Gone.
MAY FIGURE IN MYSTERY
Absence of Motive in Killing May
Allow Davis to Escape.
NO STATE LAW TO PUNISH HIM
Mrs. Rice, as Survivor of Suicide
Pact, May Be Convicted of First
Degree Murder.
MAY FIGURE IN MYSTERY
NO STATE LAW TO PUNISH HIM

| OMAHA, Neb., September 1.-two ad-
ditional detectives have been placed at
work on the mystery surrounding the
death of DR.. Frederick A Rustin.
| The hat worn by the physician the night
| of the tragedy has not yet been found.
| This is considered important In view OF
the fact that the pistol with which the
| shooting was done is also missing.
| Various theories have been advanced
about the hat. The fact that it has not
| turned up has caused much speculat ton as
| to how 1t disappeared.
| Mrs. Rustin was questioned about the
hat the day of the inquest. Her testi-
mony did not disclose anything which
would enlighten the jury. She merely
stated that 1t had not been seen.
May Figure in Solution.
That the hat disappeared through the
same agency which made away with the
pistol is now regarded as established. The
police are trying to associate the two
articles in q way which may throw some
light on the manner in which the shooting
occurred
Rustin wore a black derby hat on the
night of the shooting. 1t has been sug-
gested that he might have placed it
against his abdomen as a mark for the
person who shot him in the event of his
death having occurred in that manner.
1t is also agreed that had the bullet
passed through the hat before entering
his body 1t would have prevented powder
marks showing either on the clothing or
on his skin.
Charles E. Davis. accused of the muir
der, is still at the home Of Luther
kountze. his nephew. and is said TO be
recovering partially from the shock Incl
dent to the Rustin shooting and inquest.
and his illness following his own attempt
at suicide
A new tack was taken in the Rustin ca Sc
by the authorities this morning, when the
county attorney took charge of the inves-
tigatiOn. In future detectives and officers
detailed on the case will report all evil
dence they discover direct to the prose
cutor rather than to the police depart
ment.
| This action was taken because Of adverse
| criticism directed against the police de-
partment for failing to report certain
clues anu findings to the legal department
because of their apparent insignificance
| to the police, hut which later We're found
to he of Importance in fixing the respon-
sibility for DR.. Rustins death.
The mysterious man who was seen by
DR.. j. P. Lord staggering down the street
from the Rustin home as DR.. Lord was
hurrying to the house shortly after Rustin
was shot was also seen by F. j. Stack,
driver of the ambulance which responded
W tlc COLL 10 Jake huStlu 10 the hospital.
Stack gave this information today to the
county attorney
When seen by Stack the man had
reached 2Sth and Farnam streets. three
quarters of a mile nearer town than when
seen by DIR. Lord.
DR.. Lords description fitted Charles f..
Davis. now under arrest charged with the
| murder. Stack has never seen Davis, but
his description given today fits Davis He
says the man he saw was dressed in dark
clothing
This man has now been traced from nea r
the Rustin house all the way down town.
having been seen at three different points
on the route. The county attorney today
directed the police to make a search and
discover who this man was, if possible.
No Law to Punish Davis.
A curious phase of the legal status of
the Rustin murder case has cropped out
Even If Charles Edward Davis, who is
under arrest on a charge of numbering
DR.. Rustin. should be found guilty of the
murder, lawyers here say there Is no
statute in Nebraska under which he can
be punished.
The idea that one man would shoot
another simply because the other wanted
to die never occurred to the Nebraska
lawmakers and the statutes do not cover
the crime for which Davis has been ar
rested.
Another curious point which has arisen
is that, under the law. while Mrs Rice,
who didn't kill DR.. Rustin. may be guilty
of murder in the first degree, Davis If he
did Kill Rustin is not guilty of anything
at all
The Nebraska law says that the sur
vivor of a suicide compact is guilty of
murder in the first degree. Mrs. Rice is
| the survivor of the alleged compact with
Rustin. who did not release her when he
arranged with third party to kill him, as
the third party was simply the instru-
ment of death.
Mrs. Rice May Be Legal Murderer.
And although Mrs Rice was not pres
ent when Rustin was shot. she may still
be guilty of his murder. But it is in the
| case Of Davis himself that the most
curious features arise.
First degree murder in Nebraska re-
quires that the killing shall be done de
liberately and with premeditated malice -
In the Rustin case, granting that Davis
killed Rustin. he had no malice toward
the doctor and first degree murder will
not hold.
Second degree murder In Nebraska re-
quires that the killing take place "pur-
posely and maliciously without delibera-
ton and generalization" Again does the
lack of malice throw the Rustin murderer,
whoever he Is, outside conviction of sec
ond degree murder.
Mansaughter. under Nebraska statutes,
is when the victim is killed without NAL
ice. either upon sudden quarrel or I'M
Intentionally" If Davis killed Rustin
while it was without malice, yet it was
neither in sudden quarrel nor was it I'M
Intentionally done.
His case, therefore, does not come under
the manslaughter clause of the Nebraska
laws. The first and second degree of
murder and manslaughter are the only
charges covered by the Nebraska statutes
where a life is taken
County Attorney English. who has the
case in charge. says he will be obliged to
go back to the old common law of Eng
land and down to fundamental principles
in order to find any charge under which