Evening star. [volume] (Washington, D.C.) 1854-1972, 1908-06-02
TALKING TO THE JURY
Attorneys Make Final Argu-
ments in Philip Trial.
WHAT PROSECUTION ASKS
Does Not Insist on First Degree
: Conviction.
VERDICT : EXPECTED TODAY
wind-up Of Testimony for the De-
.fense-Government Offers
Rsbuttal.
EXPECTED TODAY

Announcement that the government Will
not seek the conviction of CASTOR Phillp
on charge of murder in the first degree IN
connection with the shooting OF FRANK
Macaboy, cab driver In the Arlington
Hotel year ago. was made today during
the trial before Justice Barnard In Crlmi-
nal Court No. .. The statement was
uttered by Assistant United states AT
torney Mcnamara, who submitted the hrst
Of the closing arguments TO the jury. lie
declared, however. that the government
will press for conviction OF the defendant
either on the charge of murder in the
second degree or the charge OF man.
slaughter.
All of the closing arguments Will be
completed this afternoon, SO that Justice
Barnard's final charge may be made and
the case given to the jury before the day
is ended. From all outward indications 1t
has been predicted that the jury will not
require very .long period for Its dehoer-
atoms SO that it is likely CASTOR Philip
will know his fate at or before dinner
hour this evening.
In his argument Mr. Mcnamara criti-
cised severely the conduct of CASTOR
Philip not only the night before the shoot
ing but during many months before that
tragedy, during which time. he declared.
the defendant had lived a life of idleness
and dissipation, "doinG no useful thing,
and apparently finding his greatest pleas
ure in association with the denizens OF the
lowest section Of the city, and In making
a cab driver, a man of no education, his
bosom companion" Interest In the trial
continued undated today. and the usual
large crowd occupied all the seats and all
standing room to listen to the final ar
guments to the jury. upon which Philips
fate SO largely depends.
Prayers for Instructions.
The opening hour Of the court session
this morning was devoted to discussion
by the attorneys of the prayers for in
structions to be given to the jury. and i'm
mediately afterward the government en-
tered upon its rebuttal evidence. Assistant
United States Attorney Turner calling
John A. Heath. a clerk at the Arlington
Hotel. as the first witness.
when you saw CASTOR Philip the morn
ing Of the shooting what would you say
his condition as to sobriety
or intoxication?" Mr.. Turner asked. but
Attorney Davis was instantly on his feet
not proper rebuttal. and. following pro-
tracted debate at the bench. Justice Bar
nard excluded testimony on the point.
Robert Downey. liveryman. was next
called. and there was also strenuous OBJ
lection TO asking Downey about the SUBJ
stance Of conversation between Maca-
boy. the deceased. and David Smith. an
other cabman. Smith was the first wit
ness called last Friday by the defense. and
he described conversation with Macaboy
lob kA lat u.oC q cockino
a loan from Smith the night before the
shooting and also quoted Macaboy
saying: ''I'll see Philip later tonight. and
then I'll have plenty of money
Despite the objection BY the defend
ants attorneys. the court permitted AS
sistant United States Attorney Turner
to ask Downey whether he was present
during the conversation between Smith
and Macaboy. The witness answered
Automatically, and he declared there was
no statement made by Macaboy which
would tend TO indicate that he either ex-
pected to see Philip during the night or
expected to secure any money from him.
Macaboy's Brother Testifles.
Charles Macaboy. the thirteen-year-old
brother of the deceased. testified that Gas
ton Philip visited his home. 1907 sd
street, in search of his brother Frank one
day in July. 1906. and the two went away
in Philips automobile.
The defendant was recalled to the stand
for a moment and asked If he spoke TO
John B. Smallwood. reporter for The
Star. the morning of the shooting. and
If he said in the latter's hearing. referring
to Macaboy: oh, I guess he's scared
nearly to death"
Philip said he could not remember.
Mr. Smallwood was then summoned.
and he declared Philip had made sub
stantially the statement quoted by the
At this point the government rested.
the end Of the case coming almost ex-
actlv at the hour of noon The defense
desired to produce David Smith. the cab
man, to secure his version OF the CONVEX
sation with Macaboy. and particularly
torney Davis stated he had been informed
Smith is disabled and in bed and could
no. appear Justice Barnard accordingly
decided 1t would not be advisable to
delay the case. and both sides closed
Begins for the Government.
AS soon as the case thus ended Assist
ant United States Attorney Mcnamara
began a summing-up argument to the
Jury for the government 1t was tenta-
lively agreed that each side should have
two hours for final arguments. and Mr..
Mcnamara spoke from II o'clock until
after O'Clock. leaving about three quar-
tiers of an hour for Assistant United
States Attorney Turner to close.
In beginning Mr.. Mcnamara announced
that the government would abandon the
first count in the indictment. which
charged murder in the first degree. but
would press for conviction on either the
charge OF murder in the second degree or
the charge Of manslaughter. The at
torney defined both these crimes, stating
that he did so for the benefit OF the jury
80 that 1t might use the definitions in
deciding Philips guilt or innocence.
AS he began MIR. Mcnamara reviewed
the events Of the night preceding the
shooting and spoke in most sarcastic
vein of the evident fondness manifested
by CASTOR Philip. a university graduate
and a traveller. for association with a man
of comparatively little education or re-
finement, such as Frank Macaboy.
From his own story it would appear
that CASTOR Philip had been i'll and in
bed for thirty-six hours before starting
out on the orgy which resulted In the
taking OF the life OF another human be-
ing" said Mr.. Mcnamara. and might
It not be said that this tragedy into which
we have been inquiring was the fitting
climax to a carnival of crime?
Mention Of Dissipation.
THAT illness of thirty hours the de-
PENDANT has told you was caused by
gastritis or some similar ailment brought
on by prior dissipation. He started from
the Arlington Hotel at o'clock the after
noon OF May II. 1901. and went first to
the Villa Flora Club. then to Georgetown
and finally on round of different sa-
looms. with the evidently usual result
that the small hours of the next morn