New-York tribune., 1911-02-21
HYDE TO TESTIFY
FOR GARDNER TO-DAY
Despite Adverse Ruling, Defend
ants Lawyer Thinks Chamber
lain Can Refute Elders Story.
COURT BARS ONE LINE
Wilkes Barre Man Backs Evi.
dence of Foelker and Elder,
Saying Gardner Told Him
of Bribe and Fund.

Max Steuer. counsel for former stats
Senator Frank J. Gardner. on trial for
an alleged attempt to bribe Congress
man Otto G. Foelker, then a State Sena-
tor, 10 vote against the anti-racetrack
gambling bills In 1908. said last night
that he would call City Chamberlain
Charles II. Hyde this morning as a witt
ness for the defence.
Mr.. Steuers decision followed a ru-
ing by Justice Seabury that came as
stunning surprise to the defence. Mr..
Steuer expected to use Mr.. Hyde James
E. Gaffney. Harry Payne whitney and
others mentioned in Robert H. Elders
story OF Gardner's alleged confession to
him Of bribery plans. to refute the Brook
lyn Assistant District Attorneys story.
but Justice Seabury ruled that Mr.. Gah@
ney could not testify regarding Mr..
Elders story at all.
81 have come to the conclusion that
there is some other means of making Mr..
Hydes testimony material, so that can
question him in regard 10 the alleged
s5000O0 Doodle fund" said Mr.. Steuer.
"and I shall call him as witness first
thing tomorrow. Mr.. Hyde is as anx-
ious to testify as I am anxious to have
him take the witness stand"
The prosecution offered testimony yes
terday tending to corroborate the testi-
mony Of Congressman Foelker in regard
to the alleged s12, 900 bribe offered to him
by Gardner, and also tending To corrobo-
rate Elders story OF the 100000 bribe
fund.
Justice Seabury's ruling that evidence
to contradict Elders testimony was inn
material. because the witness had not
pretended to testify to facts. but merely
to what the defendant had told him.
brought confusion temporarily TO tho
ranks Of the defence. The situation cre-
ated was parallel to that at the trial OF
Harry X. Thaw for the murder OF STAN
ford White, when the court ruled that
testimony TO dscredit the story Of Eve
yn Nesbit of the abuses she had suf-
fered at the hands of the architect was
not admissible because she was not tes-
tifying as TO facts, but only as TO what
she had told the defendant Thaw. her
being to show that Thaw's mental condi-
ton, as a result Of that story. led to his
act.
Testimony as to Regents Barred.
Immediately after the refusal tp admit
any such testimony, the defence got an
other surprise when Justice Seabury
oil 10 Nxbofh.r
Congressman Foelker had taken his own
regents examinations in 1904, or had
been impersonated by a man known as
Max Sosinsky, now serving term in the
penitentiary for impersonating others in
taking the regents examinations, an i'm
preston which Mr.. Steuer, the defend
ants counsel, tried To create by in
ference. on the cross examination of
Foelker. Congressman Foelker had al
ready testified, in answer TO Mr.. Steuer's
questions, that he took the examinations
with all regularity, and the court ruled
that counsel was bound by this answer
and could not dispute it, as it was testi-
mony in regard to collateral matters and
did not concern the actual bribery charge
in issue.
The defence did not attempt TO call
other witnesses yesterday afternoon, and
Mr.. Steuer asked for an early adjourn
ment In order to recast his plans for the
future conduct of the case. Assistant
District Attorney Mott rested the peo-
ple's case at the beginning Of the after
neon session. The trial was adjourned
at Mr.. Steuers request until to-day.
Mr.. Steuer said after court that he
had subpenaed and had intended TO call
as witnesses City Chamberlain Hyde.
Harry Payne Whitney, Andrew Miller.
SCHUYLER Parsons and Thomas Hitch
cock ir.. all of wnom We're mentioned in
the Elder testimony as having been pres
ent at the dinner at Delmonico's when
the SJOOOOO fund was alleged TO have
been raised. He had not been able to
subpoena James II. Keene and Gene"
Wood. two others said TO have been
present at the Delmonico dinner, because
thew were both out of the state. Mr..
Keene was in Europe and MIR. Wood vas
in Hot Springs, Ark, IL was said.
"But none of these gentlemen can now
testify under the ruling of the court
said Mr.. Steuer. "Mr. HYDE and tbs
others were ready and willing To testify
In regard TO this matter"
Gaffney Eager to Testify.
When Gaffney was called as witness
he stepped forward with alacrity and
smiled broadly as he settled down in the
witness chair. About the only question
he was allowed TO answer was concern
ing his acquaintanceship with the de-
fendant He said that he had never
known Mr. Gardner personally. Mr..
Steuer then plunged into lot Of ques-
tions about the alleged 100000 fund. all
a. which We're objected to by Mr.. Mott.
The objections We're sustained by Justice