19

MONDAY'S CONFESSION GOES

(Continued From Seventh Page.)

"I don't know whether I am or not."

"You hope so?"

"I expect he will pay me for what work I have done, but I don't know anything about it. He said he would and I guess he will."

"Does your pay in your contract with Mr. Malone in any way depend upon the result of this trial?"

"No sir."

"Who was present when you had this contract with Jim Malone?"

"Nobody but Jim Malone and myself."

"At what time of night was it?"

"About twenty-eight minutes past 9 o'clock. I think, when we sat down.

"And it was while you were sitting there that he gave you this statement?"

"Yes sir."

"I thought you said you were standing on the steps of the Capital hotel when he gave it to you."

"No sir: I said we were sitting down on the Capital hotel steps, on the north side of the house."

"Were you sitting on the steps or in chairs?"

"On the steps."

"On the 25th of March?"

"About that time, I can't tell within three, four or five days."

"What time of night was it?"

"It must have been about twenty-seven or twenty-eight minutes past 10 when we sat down there."

"You had a purpose in getting any admission out of Mr. Malone at that time if you could, hadn't you?"

"Not that time I hadn't."

"Was it given to you in confidence?"

"No sir."

"Just told in a general way.?"

"Yes sir."

"Now, hadn't you been trying to pump Malone in regard to this matter before?"

"Not at that time, only as a matter of mere curiosity to myself."

"But you had as a mere matter of curiosity>"

"Yes, sir. I had no object in that, though, until at the time of asking those questions."

"How many times had you asked him questions on this subject similar to these previous to this time?"

"I can't say. I have had several talks with Mr. Malone before and since that time."

"Haven't you asked him about that same question in a fact several times before that?"

"No sir, not on that subject."

"Since that have you not been trying to get additional information out of him?"

"On that particular subject?"

"On any subject connected with this Sheedy murder?"

"I have got considerable information out of him since that time, but not on that subject."

"Have you any concerning the Sheedy murder?"

"Yes, sir."

"And you would then go and impart it to the other attorney?"

Objected to; sustained.

"Did you ever tell Malone that you were in the employ of the other side when you were talking to him?"

"No, sir."

Redirect by Strode:

"Mr. Hall has had you up in his office a number of times trying to pump you, too, had he not."

"Once."

"He was talking about employing you once, was he not?"

"He said something about it."

Re-cross examination by Hall.

"When was that?"

"That you had me up there?"

"When you came up there?"

"I was sent for to crime up there."

"Who sent for you?"

"Somebody told me you wanted to see me."

"Who told you?"

"I would not undertake to say all the men that told me that Mr. Hall and Marquette wanted to see me."

"What kind of a looking man was that?"

"I would not undertake to say who told that you wanted to see me, but somebody told me and I came up there. I don't know but what it was Mr Malone; I don't know that it was: I would not say."

"When was it that man told you?"

"Can't tell you."

"What month was this?"

"My recollections is that it was between the 20th day of March and the 25th; along there somewhere, but I could and would not say within a week."

"Did you say I employed you at that time?"

"I say we had a little talk about it."

"Answer my question. Did I make any attempt to employ you in connection with this matter at that time?"

"Don't you remember a conversation you and I had?"

"Just answer my question?"

"Well, I don't know what you would call it; I call it that?"

"Did I offer to pay you anything?"

"You said Dennis Sheedy had lots of money and I might get a piece of it."

"Did I say how much of a piece you might get?"

"No, but you cautioned me not to let Marshal Melick and Malone know I had anything to do with it if I did go to work on the case."

"Did you go to work on it?"

"No sir. Yes sir, I did go and see one woman for you."

"You did go and see her?"

"Yes sir, I did."

"You went and saw her and saw what she said, and then went and told the other aide about it?"

"No sir, I didn't: what I done fo you I done in good faith."

"Did you come back and tell me what you had done?"

"No sir. The next day after I was in your office I was employed by Mr. Strode. I was not hired on both sides of the case. I am not any of those men that pull both ends of the rope."

"You didn't come back and tell me anything about what I had asked you to see about."

"No sir; you met me on the street and I told you---, you know what I told you."

"That was about a month or six weeks ago?"

"Yes sir."

"That was the first time I had seen you or said anything to you since you were up in my office?"

"I think it was the first time you asked me any questions about that lady and about anything else in connection with the matter?"

"Yes, I think so."

"Is it not a fact that in that conversation there you told me you was a neigh-bor of the party that I wanted to find out whether she knew anything about the case or not?"

Stenographer Wheeler was called back in the stand by the state and asked by Mr. Hall if he had stenographic notes of that confession with him in court. He replied that he had and was asked to read them.

The defense objected on the ground that a confession was admissible in evidence against an accused only when freely and voluntarily made; it must relate to the prisoner and his connection with the crime charged; it is inadmissible if obtained through threats of promises of immunity. Mr. Stearns spoke at considerable length, citing many authorities in support of our position. He also contended and cited authorities to show that when a confession has once been obtained through hope or fear, the subsequent confession inferred to come from the same motive, although there may be no immediate evidence of coercion as to the latter confession, the burden of proof being upon the state to show that it was entirely free and voluntary, made after he had been warned of the consequences. He contended that Monday had been led to believe that it would be better for him to make this confession, and that a mob was intent upon lynching him, and that the prisoner was excited by fear or in-toxication.

Judge Weir of counsel for defense then spoke in the same vein and dwelt upon the susceptibility of the ignorant, Illiter-ate Monday McFarland to such influences, and contending that his mind was not free and the confession not voluntary. He dwelt upon the testimony of Carder to the effect that Monday was in-cited to violent fears by the belief that a mob was being formed, and contended that on that momentous Sunday morning when Monday told his story every inducement was offered him, such as assuring him that to save his own life, and to better his condition, he should tell all. Judge Weir talked for twenty minutes, and Mr. Woodward handed a list of authorities.

Mr. Hall , for the state, said that every confession stands upon its own merits, being surrounded by different circum-stances and no rules of law would apply to any considerable number of confessions. He said the council had been very general in their remarks and had not told just what promises and threats had m=been made. In order to exclude a confession it must appear that a confession is a direct result of promises or threats. If the mind of a criminal must be cool, calm and unimpassioned when an admissible confession is made, there would never be a criminal's confession ad-mitted in testimony. There was nothing to show that the confession at issue was the result of promises or threats. He contended that nothing that could be construed to be a promise or a threat had been proven, and if the propositions to which objections were advances were ever made, no confession appears to have followed. The speaker rubbed the credibility of Mr. Carder pretty severely and said that if Malone had talked of a mob that night, which was denied, and had frightened Monday, then would have been the time for him to make his confession if he had made it through fear and not wait until the next day at noon. He further called attention to the fact that Mayor Graham had been called to hear the confession that Monday had evidently already made up his mind to tell the truth. The test of a promise or threat sufficient to render a confession inadmissible is whether or not it is of such nature as would induce him to tell an untruth. There must be a positive promise of immunity by a person having authority in order to exclude a confession. Mr. Hall quoted extensively from authorities in support of his propositions and spoke for fully an hour.

Near the close of his address Mr. Hall in contending for the admission of the confession said that were it admitted when it should not be, the defendants would have their remedy in a higher court.

Mr. Strode interrupted the speaker with a request that that remark be reduced to writing and that the court instruct the counsel that he had done wrong and very wrong in making the statement to the jury.

The court said he saw no ground in the statement that would justify a rebuke, but that it would be as well if it had been unsaid.

Mr. Strode then dictated to the reporter what Mr. Hall said, but in other words.

Mr. hall denied that he had made the statement which Mr. Strode quoted him as having made, and he protested against the reporter putting in the records anything which he had not said.

"Well, repeat it," said Mr. Strode.

"Inasmuch as counsel for the defense objected so strenuously to the statement when first made; I don't think i would be justified in repeating it."

"Do you remember the statement?" asked Mr. Strode of Reporter Wheeler.

The latter hadn't retained it.

"I ask the court whether or not what i have quoted was not the substance of what Mr. Hall said?"

"The court cannot advise you," replied Judge Field.

The storm blew over without further damage.

Judge Field admonished the attorneys to out short their addresses. He didn't desire to interfere with the desire of counsel to make good speeches but he couldn't permit such extended discussion of every question presenting itself.

Mr. Lambertson said that under that understanding he would say nothing, as Mr. Hall had covered the ground.

Mr. Woodward of McFarland's counsel then took a whack at the inadmissibility of his clients' confession and devoted over an hour to an impassioned discussion of the promises to Monday embodied in the evidence, held out to induce him to tell his story. He quoted in addition to what is heretofore given the statement made by Garder that Malone had said to Monday that Saturday night, "I'll get you before morning." He went over all the evidence to show what had been said calculated to frighten Monday or lead him to hope for clemency, and cited equally numerous authorities to show that Monday's story was therefore not competent evidence. Every proposition of law advanced by Mr. Hall was met by numberless authorities. But the argument was without avail, for at its close Judge Field ruled against him.

The Confession is Admitted.

In handing down his decision the cour remarked, amid the most impressive lence:

"There is no doubt that this is the critical point and the important part of this case. If I had any doubt in my mind as to the course I should pursue I should not render an option at this time, but as it has been evident that this point of the case would come up on the trial, I have investigated the law pretty thoroughly and my view of the ease is entirely settled. It being so, I see no reason for hesitating in the ruling. The law as I understand it in this state on a confession is about as has been stated by counsel, and especially by Judge Wier. I think he stated the facts very fairly, that the case it to be presented to the court to determine whether or not the confession should be submitted to the jury. If the court is of the opinion that the surroundings in the case and of the confession are such as to be entirely improper, then the count should exclude the confession and not submit it to the jury, If the court is of the opinion that the confession and all the circumstances attending and surrounding the confession should be submitted to the jury, it becomes a matter for them to pass upon as to whether or not the confession was made voluntarily and without inducements, as much as any of the other evidence. I am clearly of the opinion that his is admissible to go to the jury. Therefore I overrule the objection."

Exception by both defendants.

Mr. Strode: "Upon the part of the defendant. Mary Sheedy, we object to the admission of this alleged confession of Monday McFarland for the further reason that it was not made in her presence, but was made, if made at all, without her knowledge and assent, and cannot be in any way blinding upon her and cannot be received and put in evidence against her." Overruled. Exception.

Judge Field, in reply, said: "I see no way when two persons are charged and tried together, of using evidence against one and excluding it as against the other. That, however, will be covered by instructions. I will note the objection to the introduction of the confession and cover the question of its relevancy by an instruction."

These rulings, evidently, were very disheartening to the attorneys for the defense, both branches, as was evinced by the tones of their further utterances. As it was then late Judge Field adjourned court until this morning when the confession will probably be read by Stenographer Wheeler.

WEEKLY STATE JOURNAL FOR TEN CENTS.

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Address State Journal, Lincoln, Neb.

MONDAY'S CONFESSION GOES

(Continued From Seventh Page.)

"I don't know whether I am or not."

"You hope so?"

"I expect he will pay me for what work I have done, but I don't know anything about it. He said he would and I guess he will."

"Does your pay in your contract with Mr. Malone in any way depend upon the result of this trial?"

"No sir."

"Who was present when you had this contract with Jim Malone?"

"Nobody but Jim Malone and myself."

"At what time of night was it?"

"About twenty-eight minutes past 9 o'clock. I think, when we sat down.

"And it was while you were sitting there that he gave you this statement?"

"Yes sir."

"I thought you said you were standing on the steps of the Capital hotel when he gave it to you."

"No sir: I said we were sitting down on the Capital hotel steps, on the north side of the house."

"Were you sitting on the steps or in chairs?"

"On the steps."

"On the 25th of March?"

"About that time, I can't tell within three, four or five days."

"What time of night was it?"

"It must have been about twenty-seven or twenty-eight minutes past 10 when we sat down there."

"You had a purpose in getting any admission out of Mr. Malone at that time if you could, hadn't you?"

"Not that time I hadn't."

"Was it given to you in confidence?"

"No sir."

"Just told in a general way.?"

"Yes sir."

"Now, hadn't you been trying to pump Malone in regard to this matter before?"

"Not at that time, only as a matter of mere curiosity to myself."

"But you had as a mere matter of curiosity>"

"Yes, sir. I had no object in that, though, until at the time of asking those questions."

"How many times had you asked him questions on this subject similar to these previous to this time?"

"I can't say. I have had several talks with Mr. Malone before and since that time."

"Haven't you asked him about that same question in a fact several times before that?"

"No sir, not on that subject."

"Since that have you not been trying to get additional information out of him?"

"On that particular subject?"

"On any subject connected with this Sheedy murder?"

"I have got considerable information out of him since that time, but not on that subject."

"Have you any concerning the Sheedy murder?"

"Yes, sir."

"And you would then go and impart it to the other attorney?"

Objected to; sustained.

"Did you ever tell Malone that you were in the employ of the other side when you were talking to him?"

"No, sir."

Redirect by Strode:

"Mr. Hall has had you up in his office a number of times trying to pump you, too, had he not."

"Once."

"He was talking about employing you once, was he not?"

"He said something about it."

Re-cross examination by Hall.

"When was that?"

"That you had me up there?"

"When you came up there?"

"I was sent for to crime up there."

"Who sent for you?"

"Somebody told me you wanted to see me."

"Who told you?"

"I would not undertake to say all the men that told me that Mr. Hall and Marquette wanted to see me."

"What kind of a looking man was that?"

"I would not undertake to say who told that you wanted to see me, but somebody told me and I came up there. I don't know but what it was Mr Malone; I don't know that it was: I would not say."

"When was it that man told you?"

"Can't tell you."

"What month was this?"

"My recollections is that it was between the 20th day of March and the 25th; along there somewhere, but I could and would not say within a week."

"Did you say I employed you at that time?"

"I say we had a little talk about it."

"Answer my question. Did I make any attempt to employ you in connection with this matter at that time?"

"Don't you remember a conversation you and I had?"

"Just answer my question?"

"Well, I don't know what you would call it; I call it that?"

"Did I offer to pay you anything?"

"You said Dennis Sheedy had lots of money and I might get a piece of it."

"Did I say how much of a piece you might get?"

"No, but you cautioned me not to let Marshal Melick and Malone know I had anything to do with it if I did go to work on the case."

"Did you go to work on it?"

"No sir. Yes sir, I did go and see one woman for you."

"You did go and see her?"

"Yes sir, I did."

"You went and saw her and saw what she said, and then went and told the other aide about it?"

"No sir, I didn't: what I done fo you I done in good faith."

"Did you come back and tell me what you had done?"

"No sir. The next day after I was in your office I was employed by Mr. Strode. I was not hired on both sides of the case. I am not any of those men that pull both ends of the rope."

"You didn't come back and tell me anything about what I had asked you to see about."

"No sir; you met me on the street and I told you---, you know what I told you."

"That was about a month or six weeks ago?"

"Yes sir."

"That was the first time I had seen you or said anything to you since you were up in my office?"

"I think it was the first time you asked me any questions about that lady and about anything else in connection with the matter?"

"Yes, I think so."

"Is it not a fact that in that conversation there you told me you was a neigh-bor of the party that I wanted to find out whether she knew anything about the case or not?"

Stenographer Wheeler was called back in the stand by the state and asked by Mr. Hall if he had stenographic notes of that confession with him in court. He replied that he had and was asked to read them.

The defense objected on the ground that a confession was admissible in evidence against an accused only when freely and voluntarily made; it must relate to the prisoner and his connection with the crime charged; it is inadmissible if obtained through threats of promises of immunity. Mr. Stearns spoke at considerable length, citing many authorities in support of our position. He also contended and cited authorities to show that when a confession has once been obtained through hope or fear, the subsequent confession inferred to come from the same motive, although there may be no immediate evidence of coercion as to the latter confession, the burden of proof being upon the state to show that it was entirely free and voluntary, made after he had been warned of the consequences. He contended that Monday had been led to believe that it would be better for him to make this confession, and that a mob was intent upon lynching him, and that the prisoner was excited by fear or in-toxication.

Judge Weir of counsel for defense then spoke in the same vein and dwelt upon the susceptibility of the ignorant, Illiter-ate Monday McFarland to such influences, and contending that his mind was not free and the confession not voluntary. He dwelt upon the testimony of Carder to the effect that Monday was in-cited to violent fears by the belief that a mob was being formed, and contended that on that momentous Sunday morning when Monday told his story every inducement was offered him, such as assuring him that to save his own life, and to better his condition, he should tell all. Judge Weir talked for twenty minutes, and Mr. Woodward handed a list of authorities.

Mr. Hall , for the state, said that every confession stands upon its own merits, being surrounded by different circum-stances and no rules of law would apply to any considerable number of confessions. He said the council had been very general in their remarks and had not told just what promises and threats had m=been made. In order to exclude a confession it must appear that a confession is a direct result of promises or threats. If the mind of a criminal must be cool, calm and unimpassioned when an admissible confession is made, there would never be a criminal's confession ad-mitted in testimony. There was nothing to show that the confession at issue was the result of promises or threats. He contended that nothing that could be construed to be a promise or a threat had been proven, and if the propositions to which objections were advances were ever made, no confession appears to have followed. The speaker rubbed the credibility of Mr. Carder pretty severely and said that if Malone had talked of a mob that night, which was denied, and had frightened Monday, then would have been the time for him to make his confession if he had made it through fear and not wait until the next day at noon. He further called attention to the fact that Mayor Graham had been called to hear the confession that Monday had evidently already made up his mind to tell the truth. The test of a promise or threat sufficient to render a confession inadmissible is whether or not it is of such nature as would induce him to tell an untruth. There must be a positive promise of immunity by a person having authority in order to exclude a confession. Mr. Hall quoted extensively from authorities in support of his propositions and spoke for fully an hour.

Near the close of his address Mr. Hall in contending for the admission of the confession said that were it admitted when it should not be, the defendants would have their remedy in a higher court.

Mr. Strode interrupted the speaker with a request that that remark be reduced to writing and that the court instruct the counsel that he had done wrong and very wrong in making the statement to the jury.

The court said he saw no ground in the statement that would justify a rebuke, but that it would be as well if it had been unsaid.

Mr. Strode then dictated to the reporter what Mr. Hall said, but in other words.

Mr. hall denied that he had made the statement which Mr. Strode quoted him as having made, and he protested against the reporter putting in the records anything which he had not said.

"Well, repeat it," said Mr. Strode.

"Inasmuch as counsel for the defense objected so strenuously to the statement when first made; I don't think i would be justified in repeating it."

"Do you remember the statement?" asked Mr. Strode of Reporter Wheeler.

The latter hadn't retained it.

"I ask the court whether or not what i have quoted was not the substance of what Mr. Hall said?"

"The court cannot advise you," replied Judge Field.

The storm blew over without further damage.

Judge Field admonished the attorneys to out short their addresses. He didn't desire to interfere with the desire of counsel to make good speeches but he couldn't permit such extended discussion of every question presenting itself.

Mr. Lambertson said that under that understanding he would say nothing, as Mr. Hall had covered the ground.

Mr. Woodward of McFarland's counsel then took a whack at the inadmissibility of his clients' confession and devoted over an hour to an impassioned discussion of the promises to Monday embodied in the evidence, held out to induce him to tell his story. He quoted in addition to what is heretofore given the statement made by Garder that Malone had said to Monday that Saturday night, "I'll get you before morning." He went over all the evidence to show what had been said calculated to frighten Monday or lead him to hope for clemency, and cited equally numerous authorities to show that Monday's story was therefore not competent evidence. Every proposition of law advanced by Mr. Hall was met by numberless authorities. But the argument was without avail, for at its close Judge Field ruled against him.

The Confession is Admitted.

In handing down his decision the cour remarked, amid the most impressive lence:

"There is no doubt that this is the critical point and the important part of this case. If I had any doubt in my mind as to the course I should pursue I should not render an option at this time, but as it has been evident that this point of the case would come up on the trial, I have investigated the law pretty thoroughly and my view of the ease is entirely settled. It being so, I see no reason for hesitating in the ruling. The law as I understand it in this state on a confession is about as has been stated by counsel, and especially by Judge Wier. I think he stated the facts very fairly, that the case it to be presented to the court to determine whether or not the confession should be submitted to the jury. If the court is of the opinion that the surroundings in the case and of the confession are such as to be entirely improper, then the count should exclude the confession and not submit it to the jury, If the court is of the opinion that the confession and all the circumstances attending and surrounding the confession should be submitted to the jury, it becomes a matter for them to pass upon as to whether or not the confession was made voluntarily and without inducements, as much as any of the other evidence. I am clearly of the opinion that his is admissible to go to the jury. Therefore I overrule the objection."

Exception by both defendants.

Mr. Strode: "Upon the part of the defendant. Mary Sheedy, we object to the admission of this alleged confession of Monday McFarland for the further reason that it was not made in her presence, but was made, if made at all, without her knowledge and assent, and cannot be in any way blinding upon her and cannot be received and put in evidence against her." Overruled. Exception.

Judge Field, in reply, said: "I see no way when two persons are charged and tried together, of using evidence against one and excluding it as against the other. That, however, will be covered by instructions. I will note the objection to the introduction of the confession and cover the question of its relevancy by an instruction."

These rulings, evidently, were very disheartening to the attorneys for the defense, both branches, as was evinced by the tones of their further utterances. As it was then late Judge Field adjourned court until this morning when the confession will probably be read by Stenographer Wheeler.

WEEKLY STATE JOURNAL FOR TEN CENTS.

We will furnish the Cosmopolitan magazine (price $2.40) and the WEEKLY STATE JOURNAL (price $1.00) both for one year for $2.50, which is but 10 cents more than the regular price of the Cosmopolitan. You can have the WEEKLY JOURNAL mailed to any address you desire. You have some friend to whom you could send it.

Address State Journal, Lincoln, Neb.