Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1911-12-28
MARKS PROSECUTION SCORES
Judge Refuses to Order Verdict for
Defendant in Bluffs Trial.
MEDICAL TESTIMONY BARRED
Defense Forbidden 20 Introduce ENi-
dence to Effect that Physical Com
dItion OF Defendant Was Had
During Gangs Operations.


on rulings by Judge Arthur the prose-
oution twice scored yesterday in the
Marks trial at Council Bluffs. The motion
to take the case from the jury and order
a verdict OF acquittal was overruled and
the court refused to permit the defense
20 introduce medical testimony to show
that Marks physical condition was bad
during the operations of tho Mabray
gang. Judge Arthur announced that he
might later modify the latter ruling.
Yesterday forenoon was devoted to ar
gulng the motion for an instructed ver-
dict. At o'clock the defense began !ts
attack upon the states case. Sheriff Nc
Caffery and County Attorney Hess con-
tradicted evidence formerly presented by
the state.
Indictment Attacked.
The Jury was excused while the motion
10 dismiss was argued. The indictment
was attacked on the ground that II
charged two separate offenses, conspiracy
and larceny, and an armful of court de-
| cisions supporting the contention that
a dual indictment was contrary to stat
ute and court rules was adduced. An
other argument was that the conspiracy
laueged related only TO the alleged
agreement between Mabray and Marks
one said to have been made In the early
spring OF 1907 and the other in March
1908. both being dates against which tn
statute OF limitation runs as being thre'
wears before the date OF the indictment
october II, 1911. Court opinions wer'
cited to sustain the contention that tn
indictment could only rest upon the al
legged conspiracy and that the separat
acts Of mixers could not be considere'
under It, as each were but separate In
stances OF larceny.
IL was also again Contended that thI
conspiracy itself hal not been ostab
lished because of the bar OF statute an'
rule that a conspiracy could not b.
proved by the sole testimony OF a co
conspirator, ana the contention was tina
there had been no evidence tending L
show the conspiracy except that o
| Mabray himself
Mr.. Mitchell made the principal argu
ment, supplemented by Mr.. argan.
In opposing the motion for an instructe
verdict Attorney General Gosson as
serted the sufficiency OF the indict
, ment. pointed out court decisions an
; reviewed tn etestimony Of Mrs. Mabra
that her husband had told her he wa
5 going TO Marks house to pay him none
and that Of Ira NJ. Day, who had see
uabray enter the place, and conclude
E by declaring: III such testimony Is nc
l sufficient evidence in any court,
a despair for the future Of the country"
Ia overruling the motion, Judge Arthr
e nads no comments. Motion 20 comp
r the state TO say which Of the two phase
OF the dual Indictment IL chose TO 30
the Jury upon was also oyerruled.
Deputy sheriff Testifies.
AIr. Crum then described In detail q
: ratd that was made of room on Il
second floor and the finding OF W.
= dressed strangers there with two athlet
p In fiahting COZ e. He said he was 70
e that some rich Is were simply uyli
j. out an athlete VIII, 'as TO challenge q
e winner of a prize fisl.t to be pulled OF
l. East Omaha On July l.
70 The men were all strangers to him. b
the man whom no assumed TO be chief
y afterwards discovered was Mabray. L
= men were closely questioned about al
. netting going on and told that arres
/ would follow IL there was any. At n
& time the gambling houses In the Gov
10 we're closed and the police had stri
4 orders from Major Richmond to wat
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