Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1909-02-01
PACE FIVE
WEAVER ii|i CASE HINGED
ON 1ECHN|CAL|1|ES
tcontinued From Second Page.)

(Continued From Second Page)
leaving the defendant wholly withou
information as to the case he mus
prepare to meet; at the same time per
mits the state to offer evidence of ut
tering and passing to any perso.
whomsoever within the territorial jur
addiction Of the court.
Fourteen. The indictment by statins
only in general terms evidence of dis
closure of particular facts constituting
the alleged offense, the defendant cal
not readily or fully avail himself of s
judgment hereunder and as a bar t
subsequent prosecution for the same
offense.
Fifteen. For the reason that a ver-
dict In this case would be contrary te
law.
sixteen. For the reason that The
evidence taken as a whole can moi
warrant the finding of a verdict
against the defendant.
"Seventeen For the reason that upor
the whole case, a verdict of guilty rem
dered in this case could not be allowed
by the court to stahd.
Eighteen Because the facts estab-
aished in this case. under the laws OF
this state, show that the defendant he
not guilty of the crime attempted to be
charged in the indictment.
THE defendant also moves that the
testimony of the witness Tucker as to
the signature of the recorder and The
deputy recorder to the certificate upon
the back Of the mortgage exhibit ~,
be stricken out as incompetent. imma-
terial and Irrelevant. because the prop
er foundation for the introduction If
the testimony has not been laid in the
evidence. And because the witness has
not shown competency ito testify 10
the subject-matter of the inquiry.
"The defendant also moves that the
Testimony of the witness Bateson, IN
relation to the certificate upon the alb
stract, and the signature to the Ger
tificate upon the abstract, exhibit e,
be stricken out as incompetent, dmma-
terial and irrelevant, because the prop
er foundation has not been laid for the
Introduction of the testimony, and be-
cause the witness did not show HIM
self competent to testify to the sub
]ect matter of the inquiry
Court Sustains Motion.
Practically every feature of the case
s covered in this motion and here the
light waxed warm and furious but
when the smoke of battle had cleared
tway, Judge Albrook seemed to think
here were but two things he could
to-either instruct the jury to bring a
serdict for the defendant or hold him
inder bonds to the next grand Jury.
md the following is Judge Albrook's
lecision as orally announced as soon
Us the attorneys on each side had fin
shed their arguments:
II have listened with quite a degree
# interest to the argument for and
against the proposition presented by
his motion. I want to say at the out
net, that l. with great reluctance, get
between a party and the Jury in the
rial of a case. and take the matter out
Of the hands of the jury and determine
The questions involved myself. Yet I
understand the rule to be that where,
On account of the failure Of the evil
( Hence, or some legal objection to the
iorm Of the pleading, whether it be
In a civil case or a criminal case, If a
verdict could not be allowed to stand.
rendered against the party making
The motion, the jury should not be al
owed to pass upon the case involved.
$50 far as the evidence in this case
IS concerned that has been assailed di-
:ectly, 1t is my judgment that the evil
ier1ce Of the two witnesses brought
acre from F'reeport was competent and
admissible. The evidence of Mr.. Drake
n my Judgment, Is competent and adj
MISSILE. The propositions attacking
that evidence go more to the weight
pf 1t than its admissibility.
SIN the form of the case however,
that is before the court and jury at
this time, / feel satisfied that the evil
dence of Mr.. Bateson, tending to show
the name of j. F. Hardin on the alb
stract was not written by Mr.. Hardin,
Or by Mr.. Bateson, is not competent,
and ought not to be allowed to stand.
And make the same holding with ref
erence to the statements of NIr. Tucker.
In regard. to the signature of Mr.. Ed
gington upon the certificate indicating
recording of the instrument in ques-
Ion.
sour courts have held at times, that |
rou could prove the commission Of one
brgery for the purpose Of establishing
taOlIleE 1OTSSEy, upOll WHICH d party
vas put upon defense, and, too, they |
have always held, as have the au-
.horities in mind, that the instrument |
brought in must be Of the same char
acter as the one the party ds charged
with forging.
This certificate, and the abstract in
question, are so different from The
mortgage, it seems to me, that evidence
could not be allowed to stand in she
record. or be allowed to go to the jury.
II this defendant was charged here
with obtaining property by false pre-
tense, and the state relied upon the
same state Of facts, in as much as this
abstract and certificate and the mort
gage came with the other documents
In the same package apparently, these
things might be shown as a part of tho
res gestae. don't believe that they are
properly here in proof of the uttering
Of the forged instrument.
Il think, under the circumstances, on
account of the view I take of the form
Of this indictment, / ought to express
40 opinion further with reference 20
he sufficiency or the insufficiency OF
he evidence in this case. Fair minded
men may differ whether that would be
. proposition that ought to be SUBJ
nitted to the jury under the facts dis
closed by the evidence.
"As to the form of the Indictment, u