The Mankato free press. [volume] (Mankato, Blue Earth County, Minn.) 1879-1924, 1910-01-14
ATTORNEY SCHAUB TO MOVE
new TRIAL FOR FRANK SMITH
From Thursdays Daily.

Arthur Schaub, attorney for Franz
Smith, last evening served upon Coun
ty Attorney Plymat his motion for :
new trial, together with affidavits upol
which the motion was based. The mo
tion is to be heard at two o'clock to
morrow afternoon, before Judge Pau
The motion is based on affidavits ant
on the record of the trial, Mr.. Schaul
holding that the court erred in one o.
more of his rulings, particularly whel
he let in part of the conversation a
the Jail the night of Smiths arres
and refused to let it all in.
The ground upon which the new tria
is asked are, first, misconduct of TIN
jury; second, errors of law occurring a
the trial, and duly excepted to b.
the defendant at the time; third, tina
the verdict is not justified by the evi
dence and is contrary to law.
Attorney Schaub has produced TIL
following affidavits, the substance o
which appeared in The Free Press sew
eral days ago:
State of Minnesota, County of
Blue Earth.-ss. Arthur Schaub
being first duly sworn deposes and
says: That he is the attorney
for Frank Smith in the case of
the state of Minnesota against
Frank Smith tried at the present
term of the district court within
and for said county and state.
That during the trial of said
action one, David Devine, claim
ing to be the sheriff of Logan
county, Illinois, and one, Dowell,
claiming to be the deputy warden
of the Illinois penitentiary situat
ed at Chester, Illinois, were present
at the trial of the said Frank
Smith for the purpose of trying
to identify the defendant as one,
Frank Lavendoski, who had been
paroled from the said penitentiary
and had broken his parole by
leaving the said state of Illinois;
and for the further purpose of un-
lawfully and wrongfully prelude
ing the minds of the jury in said
action.
That with the unlawful inten-
tion of influencing the jury in said
action the aforementioned Devine
and Dowell caused to be publish
ed in the daily papers of the city
of Mankato, on the 18th day of
December, A. D. 1909, long ar
ticle for most part false and I'M
true, claiming to give the past rec
ord of the defendant, prior to
said time entirely unknown to the
said jury; and tried i'll unlawful
and wrongful ways to get such
knowledge before the said jury.
That for the purpose of getting
such claims unlawfully and wrong
fully before the jury in said case,
said Dowell and Devine, asked to
see the juror, Thomas Rooney, at
that time separated from the rest
of the jury on account of alleged
sickness in the county Jail, such
Dowell and Devine stating that
they knew the brother of said
Thomas Rooney, John Rooney, the
wrestler. That in so doing in some
manner not fully known to this
affiant they impaired their claims
to the said juror, Rooney, on the
18th day of December, A. d. 1909,
and the said Rooney returned to
the jury room fully believing such
claims and imparting the same to
other jurors for the purpose of Sc
curing the conviction of the said
defendant, in the hearing of Erick
Shaw one of the Jurors in said ac-
ton, and other jurors in said ac-
ton.
That the said jury were on the
morning of the l4th day of Deem
Der, 1909, taken to the barbershol
of NJ. L. Fallenstein i'll the city
of Mankato, said county and state,
and that there was there publicly
exposed to such jurors in the said
barbershop copy of The Daily
htNcW VI DeceIuDeT l0lH, lSUJ,
containing in most prominent
manner an article inspired by said
Dowell and Devine, for the unlaw-
full purpose afore alleged.
That the juror, Henry Hodapp,
and the juror, Ed. Bender, saw such
article and read part of the
same, the part so read being suf-
ficient to inform the said two jur-
ors of the claims of said Dowell
and Devine, in regard to the de-
PENDANT having been an inmate of
the penitentiary at Chester, Ill.,,
and his true name being Frank
Lavendoski, and his being want
ed for breaking his parole.
That the said two jurors after
being acquainted in this illegal
manner of such facts impaired
such knowledge to the other Jurors,
in the presence and hearing of the
juror, p. H. Jordan, and other
jurors.
That this affiant believes, upon
information, that in other unlawful
and wrongful methods information
of the claims of the said Dowell
and Devine was brought to the
said jury and considered by them
in their deliberation before. rem
dering verdict in said case, and
that such knowledge was brought
to said jury for the wrongful and