Arizona republican., 1921-12-11
AT TER S|X HOURS JURY IN GARDNER
 CASE STILL OUT.
Evidence Finished at 4::30
 P. M. and Jury Retires- At 10 O'Clock They Ask For Further Instructions

After having deliberated for six hours the jury in the case of Roy G. Gardner, mail bandit who is charged in the federal court with having robbed an Arizona Eastern mail car at Maricopa on the morning of November 3, announced at 11:25 o'clock last night that they were unable to reach a verdict and asked that they be permitted to retire. They will resume their deliberations this morning, with a proba bility that Gardner's fate will be decided upon Sunday.
 The arguments for counsel for the government and the defendant were ended at about 4:30 o'clock yesterday afternoon. Judge Sawtelle's charge to the jury was completed at 5:20 o'clock, when the jury began their deliberations At 6 o'clock they were taken to supper, resuming their work lat 7:30.
 At 10 o'clock in the evening the jury announced that it had com munication to present to the judge. The nature of this communication may be judged from the following report:
 Court to Jury
 JUDGE SAwTELLE-As I stated in my general instructions to you that if sou find the defendant not guilty it Nould mean that this de- fendant goes free insofar as this par ticular charge is concerned and in the very nature of things if the man goes free, this court has no further jurisdiction of any kind over him, so far as that charge is concerned
 Now in the event that he is guilty, answering your question, ! will say that one of the reports, that if he is found guilty he will be sent to Jeay- enworth, and one of the reports, an- nual reports of that institution shows, and think it will be proper for me to read from this report, no objec- tion from either counsel
 JUDGE DAVIS-'I am not in- formed of what it is, your honor, but have no objection as to the matter. Tn any event the nature of the rec
 ords show that in the event of ac- quittal or conviction in this case the
 result will be the sending Mir. Gard ner to Leavenworth.'
 JUDGE SAWTELLE-"Of the 12 psycopathic cases placed under ob- 1 servation during the year, all were returned to duty on account of re- covery or improvement except three, two of whom are still under observa- tion and one adjudged insane
 "Now, counsel stated that in the event he is acquitted on this charge he will still be sent to Leavenworth on the other sentences, but you have mt anything to do with that and neither have l. and as I told you in my general instructions. it is none of your business and none of my business as to what the department of justice will do to him in the event that he is found not guilty here You would have no jurisdiction over him, neither would l; your duty Is to de- terrnine that issue that has been submitted to you, regardless of any other consideration at all and regard 1 less of whether he has been sen fenced on some other case or cases. Neither you nor I can avoid respon- sibility or duty on that account
 "This charge is before you and this court and must be disposed of in an
 orderly manner and you are called upon, upon your oaths, to determine | that one question, whether he is guilty or insane.
 With respect to the recommends ! tions that you mentioned. of your recommendation all can say is this: | if you find him not guilty he goes l free as far as this charge is con- cerned, on the first and second counts | of this indictment. In the event you | find him guilty and want to make any recommendation with respect 10 his being placed under observation,
 would say that I have no authority | 10 place him under observation or to order him placed under observation. | If you See fit to make any such rec
 ommendation I will gladly communi- cate a copy of your verdict to the
 prison authorities and the recom- mendation that it be carried out and
 that is as far as l can go and as far as the law authorizes me 10 go. More Expert Testimony
 The sixth day of the trial of Gard
 ner opened yesterday morning with
 pr. Thomas II. Haines, director of 1 the mental hygiene survey for the | state of Arizona, continuing his tes- ! timony concerning Gardner's sanity. | This evidence had been begun Fri day afternoon. His conclusions were | summed up in declarations that ! Gardner knew the difference between right and wrong when he robbed the mail car at Maricopa; that he was under no delusions at that time; that | he was forced to the commission Of ] inc crime by no irresistible impulse, and that he was dominated by his l own will and no other when he com mitted the robbery.
 Dr. Haines was followed by Dr. Harlan r. Mills, pathologist who had | examined Gardner with pr. Halnes, and whose conclusions were substan- tiaIly the same as the latter's. other witnesses were Dr. E. l.. Phillips, who testified that one of the sets of num- | bers found in GardneTs notebook were those of his automobile license, and Mack Gardner. jeweler, concern ing whom there were also some no ltations in the notebook and who testi- fled that he was in the habit of fre- ouenting KelIy's Waffle Kitchen, First street between Monroe and Adams streets. where Gardner also
 took his meals
 Reads Gardner's Letter
 This ended the mornings session The trial was resumed in the after noon by Thomas A. Flynn, United States district attorney. read in full
 the letter which Gardner sent to President Harding through the San | Francisco Bulletin asking for par | don. John H. Langston, assistant II United states attorney, then began his arsument-the opening argument for the government. He was followed
 e-saT Fnv. d.