Omaha daily bee., 1908-12-02


With this jury in the box the legal battle
to save Charles + Davis iron life
sentence in the penitenuary for the al
legged murder OF DR. Frederick Rustin began
Tuesday i'm criminal court.
That the defense Will make a strenuous
fight to keep some of the Important evil
dence OF the state from going to the jury
was indicated at the afternoon session
Yesterday. when Mrs Rustin. widow of DIR.
Rust.n. was on the witness stand. The
skiruish came about BY the effort Of the
defendants lawyers TO keep out Of the
record the first words Of DR.. Rustn to
Mrs. Rust'n when she found him shot on
their front porch:
A man shot me-
When this point in her evidence was
reached Attorney Gurley objected and ne
and Mr. Woodrough for the defense and
County Attorney English argued the point
for over half an hour. The objection raised
was that the statement was made long
after the shot was fired that il was not
part OF the res gestae or contemporary
circumstances to the crime. but that time
elapsed during which time Dr. Rustln
might have figured on what he should say
10 divert suspicion Of suicide.
Judge sears admitted the evidence, say
. Ing he might exclude Z later.
The state will lose one e its important
witnesses. Robert L. Archer, 4lO9 Farnam
street. Four weeks ago Mr.. Archer was
stricken with apoplezy and 10 now unable
10 speak or even express ilis wants except
with great difficulty. Mr. Archer lives
across the street ,Som the Rustln home
and his evidence was wanted to establish
/ the time OF The shooting. which Is in con-
rrovcrsy. his wife was On the stand, the
flrst witness to be- called n the case.
GurIey Points Out Mrs. RIee.
; In his opening statement 10 the jury. "
F. Gurlag. Davis attorney. declared the
evidence OF tire state itself would throw
suspicion on AIRS. Abb.e Rice rather than
On the defendant.
f The evidence Of the state that~a COM
pact q XII Or. Rustin existed will not
De denied and the witness who will testify
10 such a compact will testify she was .n
il. The lats time Dr. Rustin wac seen n
was with this witness who trsriGes she
had an ug-e menJ 10 Kill Hm. The last
time that pistol was seen in tne hands "
any body il was ia the hands ot this wit
ness vino VII lswear she promised 70 kill
Or. Rust.n. The box Of cartridges was
bought by her according TO her own admis-
siOus. She VII --st.fy sne had ,riad fOur
times TO kill Dr.. Rust!n and each time
she came a little enarer doing u than
tle time before she was the last person
seen with DR.. Rustin before DE was shot"
NJ GIriey LAID sJrees ON tine fact that
Dr Rustin had sy5.go In Insurance in
force m July which was incontesubIe for
suicide and which ne allowed 10 lapse
with this insurance In force" declared
the attorney DR.. Rastin could have gone
out into the middle OF tnes treet at high
noon and shot himself and his family could
have collected every cent Of IL.
Allowed Policies to Lapse.
Mr.. Gurley said Dr. Rust.n had allowed
a $1,000 policy 70 lapse some time be-
fore his death and another inoontsstible
policy for 5000 was near lapsiag The
agent for this company, he said, sent Dr.
Rustin a note for tine premium, the note
made payable September T. Dr. Rustin.
he said, received the note, signed 1t, bat
did not return il. and It was found among
his papers. The premium on a third in
contestlble policy. he said. was due August
y five days before DIT. Rustin was shot
"Cn tn, afternoon Of September /, about
o'clock. Just al the time the state says
Charles K. Davis was in Dr. Sust!ns office
fixing up this suicide compact DIT. RUstin
was called up by the agent for this com
pauy about the premium and the doctor
answered I will mail you a check to-
morrow. Pear IN mind he vas at that
time. according 10 the state. entering into
a compact with tire defendant for t1e
defendant 20 shoot him - hts family could
collect his Insurance
M Gurley called attention TO the "a {
that the police We're not notified f1r two
hours after the shooting took place and
when one 4 the officers met Dr. Lord the
latter said This . not a case for tile
police II IS case u suicide He also
laid stress On The conflicting stories told
by Mrs. Rice as 20 her kusw'edg= of tine
affair and that she did not tell her present
. story until Chief DHnahu- told her h-
4 believed she did the shooting. The tastI-
mony. he declared would show Mrs. Rice
. could 05t have been iT Clara Gleason =
resort By ten minutes of r.. a. she testi-
fled she was The la-e development 1f
the fact that man answering Davis
description was seen walking down Far
nam street after the shooting Wss aIsl
: I commented on.