New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1912-11-27
MAY CO FREE AFTER TWO
YEARS IN death HOUSE"
Maurice M. Lustig, Convicted OF
Wife Murder in May, 1910,
Expects Real Thanksgiving.
WITNESSES CAN'T BE FOUND
Prosecutor Moves for Discharge
on Own Recognizance-Court
of Appeals Ordered New
Trial on Two Errors.

Maurice NJ. Lustig, convicted on May
Is, 1910, of the murder OF his WIFE, hhood
Irene. by a verdict which the Court OF
Appeals held was not contrary TO the
weight of evidence, may go free to-day IN
Judge Mulqueen's part of General ses-
sions. Charles c. Mott. jr., the Assistant
District Attorney who prosecuted bushs'
moved for his discharge on his own
recognizance yesterday because within
the two years that elapsed between MS
| first trial and the ordering OF a new triai
on technical grounds by the Court OF APP
peals two important witnesses have DIS
appeared. Judge Mulqueen has the motion
under advisement Such motions are al
most invariably granted.
All day yesterday Lustig, whose spirit
! he admits, was almost broken during the
| two years he spent in the death house.
waited in the pen" outside Of Part ~
General Sessions, hoping Judge Mulqueen
would render a decision on the motion
! He went back TO the Tombs confident
| that to-day the motion would be granted
and he would eat his Thanksgiving din
ner outside prison walls.
The missing witnesses, whose testimony
Judge Foster, who presided at Lustig's
| trial. agrees, is essential, are Mrs, Maude
I Livingstone and Aagele II. w. Jensen.
| Mrs. Livingstone was the wife of the
/ proprietor of the drug store where Lustig
| is alleged 10 have stolen the strychnine
which caused his wife's death. Jensen
was a clerk in. the drug store. Every
possible effort has been made by the Dis
trlct Attorney 10 find the two since ne"
! trial was ordered on June 2. Mrs. Law
| ingstone vanished soon after the nrs'
I trial. No trace of her was found. Jeh-
sen, Il is said by his friends has gone 10
Stockholm, Sweden. There is no proVl-
sion in law for bringing back witness
who has left the jurisdiction OF the
court.
II is Jensen to whom Lustig is said 10
have applied for strychnine and whom ne
is alleged to have questioned regarding
the effects Of strychnine poisoning. Mrs
Livingstone testified at the first trial that
she overheard a conversation relating 10
strychnine between Lustig and one OF the
clerks in the store She also said that
shortly before Mrs. Lusug's death she
saw Lustig take down bottle OF strych-
nine tablets from a shelf in the store.
When she looked at the shelf a few
minutes later she said, bottle Of strych-
nine tablets was missing and Lusug had
gone
Without these two witnesses Mr.. Mott
said he would be able TO prove only that
Lustig had a motive Qll-feeling and the
discovery by his wife Of his relations with
another woman) which might account for
his causing her death, and that his wife
died as the result of strychnine poison
ing. Il am, therefore," Mr.. Mott said,
reluctantly compelled to recommend the
discharge Of this defendant upon his own
recognizance until such time as the miss
ing witnesses may be located"
A new trial was ordered on two
grounds Dr. L. E. Smith, who, on direct
examination had given detailed account
Of the tests he made for strychnine, was
| asked on cross-examination TO describe
his tests again. Judge Foster ruled that
| he need not again describe the tests
! though he might be cross-examined on
, his first statement. That was held to be
reversible error.
The second error was that the testl'
| mony Of witness called by the defence
| was excluded The witness was asked
to tell of a conversation she had had with
Mrs. Livingstone, which, IT was con-
tended, would show animus on the par
Of Mrs. Livingstone toward Lustig. Mr.
! Motifs objection on the ground that Mrs
Livingston herself on cross-examinatior
had not been reminded Of the converse
/ ton, was upheld.
| In his motion yesterday Mr.. Not
pointed out that at the time the testi'
mony was excluded Mrs. Livingstone wal
! In court and might have been recalled by
the defence for the purpose of reminding
| her of the conversation and also that IL
holding Judge Fosters ruling an errol
the Court of Appeals reversed decision
of the Appellate Division on which Judge
| Foster was RELYING