Omaha daily bee., 1908-06-07
BATTEY GETS A NEW TRIAL
Jurors Using Telephone Held to
Vitiate the Verdict.
VIOLATES RULE OF SECRECY
Judge Macy OverruIss All the other
Contentious Of the defense
Case Goes over. Until
September Term.

Case Goes Over. Until
September Term.
The fact that several jurors used the
court room telephones during the time they
were celebrating on a verdict was deemed
sufficient reason by Judge N. w. Macy of
the district court for sustaining the motion
ofthe' defense for a new trial in the custer
action against H.. v. Battey. clerk Of the
district court.
"If Jurors are going TO use the local or
long-distance telephones. the law requiring
them to be kept together during their de-
liberations Ia without effect and may as
well be repealed. I do not want a verdict
to stand after such circumstances have
been shown. The only time 1 ever allowed
a juror to use the telephone was by the
agreement of the parties in the case, with
the understanding that the bailiff should
stand by him. II the custom OF permitting
jurors to use the telephone has grown up
IN Council Bluffs, / wasn't II TO be approved
by someone other than himself, said Judge
Macy In setting aside the verdict Of guilty,
as returned by the jury.
In his ruling sustaining the motion for a
new trial Judge Macy delivered an opinion
OF considerable length. on the point that
the court erred in permitting the introduce
tIon OF certain books which were claimed
by Mr.. Battey to be his private property,
Judge Macy upheld his ruling. On the
point that the court had erred in instruct
ing the jury. placing the burden Of proof
on the defendant, Judge Macy held that the
instruction was correct.
hooks BeJoms to County.
Referring to the point raised as to the
introduction of the books claimed as pri-
| yaao nr0narfu ~ khn ASF.nl.AA. r,a-. 49,.
said: Before the trial was begun the
state asked for an order for the produe-
ton Of certain cash books, The defense
claimed that these were private books con-
tanning the memoranda Of the clerk and
the motion was overruled. In the course
OF the trial, however, it was shown that
while Mr.. Richman was examining the
books of the office for the purpose Of
making a report TO the supervisors he was
furnished with . cash book in the clerks
office for the purpose of completing this
report. Later it was shown that the county
had paid for a ledger and journal for the
clerks office and they were ordered pro-
dueed. Now 1t does not make any differ
ence IL the law did not require such a
record to be kept II the county purchased
books for the keeping OF such q record.
10 appears that II did contain entries of
thS AOSCiPSS VI tic OTIlCo. 90, IN every
phase of that question the state was album
dainty right in skiing for the production
Of these books N.,
In passing upon the alleged misconduct
OF the Jury in using the telephone, Judge
Macy said he estimated that there had not
been less than twenty communication with
the jury room in this manner from persons
outside OF any away from the court house,
Il never was more surprised than when
! heard that. 1 have gone across the
street TO keep from meeting juries, and at
hotels ] have left the room as they were
passing through from their meals, for fear
that some Of them might say good morn
ing. And here we are confronted with the
circumstances OF the bailiff admonishins the
Jurors not to be using the telephone too
much Each time a Juror talks over the
telephone 1t Is the same as IL the Juror
broke ranks or left the jury room to 20
and talk to some person. When he il At
the telephone no one but himself knows
who Is at the other end OF the line ana
what he says" said the court.
No time has been set for the retrial OF
the action against Mr.. Battey. but It can
not be taken up before the September term
as the petit jury for this term has been
dismissed. The next term of the district
court will open September 1 with Judge
Macy presiding.
The Board OF Supervisors at its session
yesterday afternoon adopted a resolution
directing the National Accounting company
OF Des Moines to complete checking up
the office OF the clerk OF the district court
up to the time of the suspension Of Mr..
Battpy by Judge Wheeler on April Ii,
G. J. Richman. the expert accountant who
checked up the office was sent here by the
National Accounting company.
the Weber divorce suit, the hearing in
which was 20 have been ~esunIed yester-
day before Judge Macy. was settled out
of court, by which Louis A. Weber. the
plaintiff, is given the decree and the
custody of their only child. Mrs. Weber
under the terms OF the agreement Is 10 |
receive $50 attorney fee, $50 in cash and !
s2b a month for six months, commencing
July l, the piano and the household
goods. The suit has attracted more than
ordinary ~attention. as the parties are well
known in the city. where they have lived
the greater part Of their lives. The
plaintiff is a railway mail clerk and was
severely Injured In the Homestead wreck
on the Rock Island.
Mary Rosenberg began suit for divorce
yesterday from Louis Rosenberg, 10 whom
she was married In November, 1897, in
Chicago. She alleges cruel and inhuman
treatment and failure TO support and asks
TO be awarded the custody OF their one
child.
There is no earthly reason why YOU cant
buy goods in Council Bluffs lust az cham |