The Marion daily mirror. (Marion, Ohio) 1892-1912, 1909-10-08

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possible to convict man of murder
In Marion county. SO there you are
The defendant took the stand when
court convened Thursday afternoon
and for nearly two hours he was un-
der a rapid fire of questions from AS
sistant Prosecutor Fred E. CUTLERY
an direct examination Hammer was a
particularly good witness, his eyes
frequently filling with tears and his
voice becoming husky as Attorney
Mouser had him te!! of the events OF
the fatal morning of June 10.
Under cross-examination Hammer
was forced to make admissions that
he did not desire to. He maintained
that he had not opened his knife un-
til he had taken 1t from his pocket
and turned around and that he used
II only when he believed his life to
have been in danger. Counsel for the
state dwelt particularly on the fact
that Hammer had come uot to the good
in his fi5tic encounter with Cubbson
on the inside of the Forsythe res
taurant and therefore should have not
feared another encounter with him.
Witnesses for the state declare that
Cubbison bad both hands in the air,
waving them more or less but that
he had no weapon in them. Hammer
claimed that Cubbison had tried to
buy knife from Woody" Forsythe
and that knowing of 1t he feared him.
Then the defendant told the court
that Cubblson, during the alteration
on the sidewalk, was fumbling in his
pocket in threatening manner and
while in such act advanced on him.
1t can hardly be said that such tes-.
tmony was borne out by other wit
nesses either for the defense of the
prosecution, although the defense
made an effort to prove that such was
the case.
Counsel for the state found var
lance in the testimony given by GER
tain witnesses before the grand jury
with that given to the petit jury. In
fact there have been charges of per-
jury made and 1t is expected that the
prosecutor may take some action af
ter the case has been concluded.
After Hammer had left the stand
the state put on several witnesses IN
rebuttal. No attempt was made by the
defense to prove Cnbblson bad
character and the numerous character
witnesses of the state were not used
In rebuttal. 1t was the aim of the de-
tense throughout to show that Ham
ner was a peaceable, quiet and unob-
trusive citizen;, that he did not at
any time appear to be looking for
trouble.
During the time that the state
was inquiring into the details of the
killing with Hammer on the stand
an attempt was made to get out or
OF him that he had made confession
to Chief Cornwell, Prosecutor Justice
and Solicitor Boyd. In this confession
Hammer is alleged to have said that
he opened his knife in his pocket and
then pulled 1t out, turned and stab
bed Cubbison. The court sent the jury
out of the room when the defense OBJ
jected to this testimony. Counsel for
the state argued that a confession is
proper testimony against the defend |
ant. The plea of self defense in ITSELF !
S an admission % the killing but a |
confession may be used to show that |
the killing was not done in self de- |
Tense. The defense maintained that |
such testimony must be used In the
direct examination and that it cannot |
be entered into either on cross ex-
animation nor in rebuttal. The court
ruled for the defense. Hammer had
said on the stand that he put his
hand in his pocket when he turned
around and that he then pulled out
the knife, opened 1t and defended
himself when Cubbison attacked him
but only when he believed himself in
danger of his life.
Assistant Prosecutor CUTLERY open
ed the arguments for the state. AS is
usual with Mr.. CUTLERY he entered
into the argument with all OF the
zeal and energy at his command, first
arguing the law to the court and fol-
lowing 1t by the pointing out the
weakness of the self defense theory
OF the defendant and the strength of
the states case to the jury. Mr.. Guth-
ery's effort from an oratorical stand
point was an excellent one; his reason
ing was clear and his manner of pre-
'enting the main points of the case to
Inc jury was such as to bring admira- {
ion. I
After a recess for supper w. p.
Moloney made the opening plea for
me defense. Mr.. Moloney was heard I
Dy a court room that was packed to !
'apacity. lie reviewed the evidence bit
)y DIT, quoting witnesses for both :
state and defendant in manner
both eloquent and convincing. Mr..
Moloney was followed by Grant L. r
NoIser whose argument, eloquent, I
surfing and OF the sort calculated to
ouch the heart strings, held the aud
ence and entire court almost spell
'ound until the close. Nothing that