Omaha daily bee., 1908-12-10

plea to the Jury to spare nc one on account
II his wealth or position and to punish
no one unless they believed him guilty.
The Instructions Of Judge Sears were
listened to with Interest by the jurors,
many of them leaning forward in theiI
seats to catch every word. The court dis
cussed the various kinds Of murder. the
nature OF a conspiracy and the legal mean
ing OF malice. He instructed the jurors
to pay no attention to the fact that the
defendant did not go On the witness stand.
He said they should give due weight to
circumstantial evidence and should draw
such differences from the circumstances as
a reasonable man would draw.
He read two instructions offered by the
defense. One OF them was in effect that
the fact that one witness testified DR..
Rustin told her there was all agreement
between himself and Davis is not suffi-
cient in itself to prove that such an agree
ment existed.
The other was In effect that the circum-
stances shown by the evidence must ex-
clude all other reasonable theories of how
DR.. Rustin came to his death, except that
claimed by the state.
Gurley Scores Mrs. Rice.
Mrs. Abbie Rice, chief witness for the
state in the Davis murder trial. was scored
numerically by Attorney w. +. Gurley IN
his address to the jury Wednesday morning
in behalf of Davis. Mr.. Gurley declared
the only evidence upon which any prosecu-
ton of his client could be based was the
story OF Mrs. Rec and at no material poin,,
he said, was she corroborated.
Mr.. Guriey began his al Argument immedi-
ately after court convened at 945 o'cl-cK
Le-ore a large au1ienCe that filed the court
loom and sIrged lnto the bar m losu. o.
1.-e attorney spoke With so much 70. ce a.d
energy he was OBJ ged TO ask the curt Tor
a recess about the middle of the session.
he completed the last word to be said to
the jury in behalf OF Charles z Davis at
1I:O0 and court Immediately Adjourned until
after lunch.
Theoretically" said MI. Gurley. after a
brief Introduction, the charge OF murder
in the first degree includes the charge OF
murder in the second degree ana man
slaughter. But practically there Is only one
theory in this case. murder in the first
degree. Charles +. Davis is either guilty
Of murder in the first degree or he is in
nocent."
Only Accuser IL This woman.
Mr.. GurIey said the ONLY witness who
testified to any plan by which Davis was
~ All At. Hu1Llu was ADDle ElCe anu ludN
outside of her testimony there was not a
straw upon which to base the theory that
Davis killed DR.. Rustin. He declared
Davis anne back to Omaha from Excelsior
Springs without subpoena and went i'm
mediately to the chief Of police and told
the story related on the witness stand at
the coroner's inquest.
| Il say that Abbie Rice Is not corroborated
on a single fact that points directly or in
directly to the guilt of Charles f. Davis"
He declared It a suspicious circumstance
that Mrs. Rice did not tell her story until
after she had been accused Of being guilty
herself.
but she could not get away from the
fact" he said, that for more than a month
she had been conserving to commit the
crime and had four times tried to commit
it,"
He then took up the situation as to DR..
Rustin's insurance and declared the fact
he had allowed $500 OF incontestible in
surance to lapse showed he did not have
himself killed to save SOS. 900 worth OF con-
testible policies. He said DR.. Rustin had
furnished Abbis Rice with money and had
paid her hotel bills, hence II could not be
claimed he had no money with which 10 pay
up his premiums. He said when Mrs. Rice
saw the two men at Fortieth and Farnam
streets and made no attempt to stop the
murder she says she knew was about 70
be committed she forfeited all right to be
believed by a jury OF good men.
"0Od Forbid IT," He ExcIaims.
God forbid h shouted. that the YER
dict OF this jury could be such as TO fur
nish a precedent that g man can be con-