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Neb. State Historical g-, latfemoutb ' Sournai. SEMI-WEEKXY EDITION TOUR PAGES PLATTSMOUTII, NEBRASKA, MONDAY, FEBRUARY 8, 1909 VOLUME XX VIII NUMBER 179 OSSENKOP TJJURDER CASE STARTS State Opens With Number of Witne wm'pUuv. 'iailv. i. V -1 was to obtain 'Information As' to the . immediately upon, securing a Jury ; ,nWdr'ug store and nail. . He In the.ossenKop caise yesieiuaj noon Judge Travis excused the re-, malnder of the panel until they, were Bent for, the several members not drawn on this jury being permitted to return to their homes. . ' Attorney L J. Doyles of Lincoln who Is present at the representative of the family of Mr. Byrnes, made the opening statement for the state. He contended that the State expected to prove the fact of the picnic, and the use of the words "I have my opinion of a man who will go to a picnic and leave his wife and family at home" and that Byrnes replied "You are no gentleman." f That thereupon Ossen- lted Bvrnes and the two fell from the walk to the ground Byrnes underneath. That Ossenkop beat him In the face and kicked him causing his death and 1 dislocating his : neck i , and fracturing " his skull. ' This In brief was his opening statement, i . i ....... . f i ' Attorney Gering for i the defense made a" brief 1 opening statement which1 did not clearly indicate the line of defense, leaving it an open question whether the defense con templated self-defense or some tech ' nical defense. By agreement pf attorneys all wit ' nesses were to be excluded from the court room during the progress of the trial. Otto Kettlehut was the Hi si ill ness called by the state and he made an excellent witness. . He testified "that he lived near Eagle In Lancaster County and knew both parties to the affray. He saw them In Eagle on the day of the picnic and on the night of the unfortunate occurrence, he was close to them when the trouble oc curred. He heard the remarks quo- testified that lights were burning in both places. At this time AUoiiit-y Gering and the court clashed, the for mer being too vigorous in his ob jections. , , , i After Clear was excused Henry Snoke was called and his testimony was strongly against the defendant. Snoke testified in effect that he was within twenty-five feet of the affray. That he saw Ossenkop knock Byrnes down and after he was on the ground kick him several times on the head and face. Gering made a desperate effort to shake Snoke'a testimony as regards the Identification of Ossen kop, but was unsuccessful, in fact strengthening it i by securing from him a statement to the effect that he knew OssenkoD to be the man whether he knew the man or not Gering made a desperate effort to shake the testimony as to Snoke's op portunlty of seeing the affray from where he stood, seemingly trying to show that from the point of view he occupied, he could not look over the sidewalk to the ground a distance of some two and a half feet, and see Byrnes' body. He also bitterly at tacked the witness for meeting with the county attorney and discussing the case with him. Attorney Doyle made a strong argument against this line of cross-examination and ob Jected. Attorney Gering lnsinuaieci that he had information that "certain things" had taken place, although h did not specify what they were nor where. The county attorney made strenuous denial of any wrong doin on his part. Gering denied any at tack upon the county attorney but In sinuated that the testimony of the witnesses had been changed since the ted by"attorney Doyle in his opening preliminary examination The court statement and saw the men, clinch, ruled an .inquiry ..Ion. ; tha line mfchi. nrevail fop awhile; The wit ness could not recollect of OttoKettle hut being In the. county .attorney's office when he was there but he did recall., most of the other wit nesses being, there., He tried to bring out mistakes in the testimony taken , at falling from the walk to the ground He saw Ossenkop on top of Byrnes ' and saw him administer- several blows to him with his fists on, the face and head. He then saw Ossen kop rise and kick the deceased set ...! tln.no In tha tara flnH VlPnH. HIS s imony was very damaging to the the, preliminary examination by on ,e 'nnoron.iv nH he not objection by Attorney Doyle this was u.. .u ,u-Jv0mino. ruled out SUaKclt U3T UC KICK viv-v.i""- . ,.,.,, tion by Mr. Gering.,,, . . -. ,'.', henry' Kettlehut called, knew the nose Winter was called last'nlght defendant and saw the deceased and yand her testimony, was to the effect defendant, together , on flight of .. v, nn in crhnnl th thoJ the airrav. . usseiiKoii mime riiiinm , luai n lie uy ' I i . i ' . (I : i i ' i osspnkon'n and knew them. On to the effect that,' I have my oplrv the night In question she saw Oasen- Ion of a manwho would go to a plc- kop and Byrnes going along' on the nlc and li'aye ils wife and family at nmo iwn fopt senaratlne home." Byrnes walked off a . few them. She was within a few feet : of the men when ' she saw Ossenkop grapple with Byrnes and strike him several times, knocking him from ; the walk some two and a hair or .three feet above the ground.' She -'"testified that Ed. Ossenkop had purged his brother' on and that after v the affray was over, Bhe heard Fred Ossenkop, the defendant, make re i. marks to the effect thai'Hc had. enough" or similar remarks. She testified there was light enough to ..see plainly all that took place., Ger- ' lnt'a cross-examination failed to ' shake her testimony. Henry Clear was the next witness ; called. He lives west of the town of Greenwood and on the day In ques- feet and remarked "You are no gen tleman." ' At this Ossenkop followed deceased ! up-and the two grappled, Ossenkop grabbing.' defendant-' by the arm and whirling1 him ' about. Byrnes and the defendant fell to the ground from the walk with Byrnes undermost. : lie was close to the men and saw Ossenkop fetrlke Byrnes. In the face several times the defendant then rising and, kicking him In the face and head.. He testified that his brother-in-law lit a match to see Byrnes face., Mr. Gering lor' the de fense made , a strenuous effort, to shake, the witness' testimony as to the deceased on September 19, the killing oecurlng on the 16tb. The hoy was exhumed for this purpose at Lincoln where it had been burled. He failed to find any abrasions on the left side of the face which is re garded by counsel for the defendant as a significant feature of the case as the majoiity of the witnesses so far examined have testified that the kicks were administered on that side of the face. The doctor, however, stated that there were two fracturas of the skull which, might have hern caused either by a direct blow or by a blow delivered directly bppuslte the point of fracture. ' It was aotignt to show for the defense that the frac- ure must have been produced by a kick or blow administered at the base of the skull where the fracture ex isted. This was not shown as the physician's testimony indicated that the fracture could have been caused n two ways as above indicated. The physician testified that involuntary turning of the head In a ease similar to this, could not well have happened and that any motion made by the de ceased ,ln seemingly trying to avoid the kicks were voluntary. This wit ness was examined by Attorney Doyle for the state. A recess was had from 12 noon to 1:30 p. m. , , Dr.: Munger recalled '. fetated the medical definition ot a broken neck Illustrating his technical description by a skull which he had with him He was cross-examined by Mr. Ger Ing. A dislocation would have to be caused by a blow of considerable force. A hypothetical question by Mr. Gering as to a dislocated neck be lng caused by a kick, Dr.; Munger stated It depended on the distance In which the foot would be drawn back Mr. Gering also Illustrated his Idea by having Ossenkop stand up and show the jury where his leg would be when drawn back two and a half feet and he also had Dr. Munger state his Judgment as to whether such a blow would cause dislocation. He stated that It might possibly. Dislocation would not result If blow was delivered In face with head turned. -Attorney Doyle drew out that dls-j location would be fatal. Doyle also showed that with the head in a cer tain position a blow on the face would produce dislocation. Dr. Mun ger and Mr. Gering agreed that the head must be In a certain position, Illustrating It, so that a blow in the face , would dlsloqate the neck. - It developed that the neck could could be dislocated by either direct force or from contract opposite the point of dislocation." ' I Mrs. A, Glebenrath called next liv ed near Eagle and attended the plo- nic In the evening. Did not know either party, , She saw the two men quarreling, repeating the language they used with a variation from .that quoted by1 other witnesses. She hur ried to her husband as the big man of the tWo pushed her back, she though Ossenkop who pushed her, She' went to her husband as she want ed to get away. Ossenkop jumped on the little man. She saw the two men In the street but that was all as she was scared and excited. On cross- examination Gering developed that the night of. the affay. was not a very dark one. Gering also Inquired as to changes , in her testimony today from the,, preliminary examination He. read from former testimony show- Inc Ossenkon tnished Byrnes off the the team was several feet from the walk. He stood by the horses' heads, and stepped back with the horses facing the men. Mr- Gering sought to show that something besides the mertj falling of the men in front of the team would not cause them to ump backwards, ' but the witness could not say. He knew the team to be gentle. The witness was an ex cellent one throughout. , Charles Denara of Alvo, was with the witness Prouty at Eagle on the night of the trouble was corroborated him In his testimony so far as It re lated to the men grappling and fall ing from the walk. ' The witness was his testimony well nigh worthless. Hobson wis one of I he poorest wit nesses put on the stand during the day and in his manner of testifying showed great weakness and uncer tainty, t . : H. V. Beaver of Elmwood called. Was In Eagle on the day of the af fray. ' Mr. Gering objected to the testimony on tho ground that his name had been endorsed on the in formation after it was filed. He did not know the parties except Ossenkop by sight. Beaver heard a racket on the street and saw a team backing up and two men on the ground. Saw one man down and another one act-1 on the north side of the team just Ing as if he was kicking him. About getting ready to tie the team to a hitching post when the men grappled and fell. He Jumped Into the buggy and with ' Prouty : drove away. On cross-examination he testified the big man pushed or threw the smaller man off the walk. He heard them fall. The men never hit the team in falling, they scared at the two men falling alone. He only saw the small man go off the walk and not the big man, this In answer to a question of Juror Wescott. The witness gave a very clear and lucid account of the affair so far as he saw It and made an excellent witness for the prosecu tion. His memory for distances and events was very good, and his testi mony Impressed all who heard it for Its evident fairness. 1 Emile Aberle called. He was from near Eagle and knew the parties. He was In Eagle on the day of tho pic nic but did not recall seeing the parties during the day. He saw the occurrence in the evening. Witness heard noise like hitting or kicking and saw Ossenkop leaving the body. He went up and saw Byrnes body on the ground but did not know him. He was all over blood. Cross-examination failed to elicit anything fa vorable to the defense. all he saw. ,Witnoss could not iden tify Ossenkop as the man doing the kicking. Body was on the ground head to the south and face up. The man doing the kicking stood south east of the body. He did not see what became of the man doing the kicking. He saw the man on the ground move his head Bideways. On cross-examination witness tes tified the night was a star lit one and he was some sixty-six feet away across the street. He was half way across the street and saw the kicks. Beaver insisted on his testimony al though Gering tried hard to shake It. Harrison Hudson, marshal of Ea gle was called and testified. Knew Ossenkop but not Byrnes. Was at Eagle the "night of September 16. An Interruption to proceedings was caused by the explosion of a parlor match or something similar in the prt!es. He was a special policeman and saw both tatties during the day and evening.. 1 ' Witness testified to meeting Byrnes in the front of the saloon and traced his movements to his team which was tied northwest of the hardware store. He left Byrnes on the corner east of where his team was tied. He did hot see the affray. He did not see Ossenkop before the affray but did see him by Byrnes' body Just after the trouble, Wit ness testified . that he observed no stones or other obstructions In the street. ' On, cross- examination witness tes tified there was' a great ' deal of drinking going on that day, and at tlmcB he had observed beer bottles In the street, but not on that day. This was true after dances and the like on that night. He testified he had made no exam ination of the Btreets either that night or the next day. The witness and Mr. Gering had a protracted ar gument over the float used In grad ing the streets would reach the gut ter at the side. The witness made a clear and lucid explanation of the use of the drag. A number of jurors questioned the witness as to the rise of the ground at the sidewalk line which the witness explained to them. This wltnes9 made an excellent Impression by his general bearing and Intelligence. Fred McGlnnlty was tho next wit ness and knew both parties. He was In Eagle on the evening of Septem ber 16 at the picnic and Baw Byrnes. room but Judge Travis did not stop I jie aiH0, located Byrnes' team the Saturday's Session. The trial of Fred Ossenkop came to a standstill this morning when Judge Travis adjourned court until Tuesday morning In order to make an Investigation Into the report of small-pox In the families of Ed. and Fred Ossenkop. Ed. Ossenkop Is a very material witness for the defense and his presence Is considered nec essary for their case. As shown else where Attorney Matthew Gering stated that he had telephone Infor mation from Dr. Wilson of the state board of health that this witness haH small pox in his family and that he was under .quarantine and his at tendance at this time would be Im possible. This Mr. Gering stated be would Incorporate Into an affj davlt of his own and support it by an affadlvit of Dr. Wilson and j also one of Dr. Dye., proceedings on that account. Hudson was some sixty or sevelity feet away and thought he heard a fight. He ran to where the crowd was and saw Ossenkop on the edge of the walk' with Byrnes body lying on the ground. Byrnes body lay a little south and east, face up. Hud son bad a flash light with him. Byrnes' lips all puffed up and a small cut under his eye. He did not examine Brynes head. Body was two and a half feet from the walk. There, was a lighted street lamp at the corner, It was a gasoline light rather powerful. Thought he heard someone striking or kicking some thing. Mr. Gering on cross- examination developed that witness did not recall whether he had testified to not hear ing blows at the preliminary exam ination. He did not consider night very dark. He used his flash light to make the night lighter. He could not recall testifying that it was kind of dark aud couldn't see without tak ing a light. He persisted that he heard the sound of blows and kicks about one hundred feet away. Under cross-examination the witness devel oped a great . loss of memory as to dis tances, being unable to tell Just how Jnror Lloyd wanted to know the With the adjournment until ,Tues day,, the members, of the Jury were- fur he WBR from the of (r0lluIe placed In the custody of the sheriff wn;,n u commenced. and will so remain until court recon vene. 'Vhile It is a hardship on the members, It was thought best to take this step by Judge, Travis to prevent any possible effect of public opin ion upon their minds. distance from the gasoline lamp on the corner to the affray. The distance was fixed at one hundred and thir teen feet. ; i j The session . this morning, the same as the witness Harty. Later he saw Byrnes' body on the walk. He went and got Byrnes' team after the death. He saw Byrnes seated In the saloon on a bench or chair. On cross-examination witness tes tified that the night was neither right light nor dark nor could he re member whether the moon was shin ing or not. ' Osa Hendricks of Bennett, Neb., was called and testified to being In Eagle on the night when Byrnes was kliled. He was in the barber shop across the street. There was a light In the barber shop. Wm. lrey of Eagle was tho next witness. He was In Eagle on Sep tember 16, and was a special police man after eight o'clock at night. He saw Ossenkop about nine o'clock In the saloon. Ossenkop had a con versation with the witness but on objection by Mr. Gering the court ruled It out. Mrs. Charles Byrnes, widow of the murdered man, was next called to the Btand. She Is a woman of ap parently 30 yenrB of age and was dressed In deep mourning. Her sev eral small children who have been present In the court room through out the trial, were placed In charge of relatives, who occupied seats within the bar. She testified that she lived In Lancaster county near Walton. She was the widow of de ceased who was a man 33 years of age, about five feet nine Inches tall and weighed about 155 pounds. The last she fcaw him alive was on Sep- 1!t...1? 1p?8B.,b,e...t!H,t ,thf n'l'0l'V?f third day of the trial, opened to a tember 16 at 10 o'clock a. m. He nr Hav who was selected as tne physician to' make the examination of the' facts In the quarantine, will be Huch that the case will be con tinued . over the term as an estab- small and scattering attendance of spectators. The defendant came In early and does not appear In the leant worrlecfover the probable out come of the qase. . He Is looking well Jistment of a quarantine against onn,j hearty and takes the damaging left home that morning for Eagle. He was well at the time and had no chronlc'dlsease never having a doc tor. ' She next aw him on Thurs day, the 17th. at Eagle In tho .un dertaker's room when he was dead. walk', but his severe questioning die- j Important witnesses would moke ftby I fucts' as developed1 In the trial with At this point tears came, to the eyes ted, nothing which would shake JitT testimony. . Orvllle Prouty, a young man from near Alvo. test tried to being in, at tendance on the picnic. He saw the trouble between the men. ' , The iho notion of Bvrns' head and body team which had been testified to by but he was unsuccessful, i He also others was his and anotner mans attnekod the witness' testimony as le ran to the team which Jumped n,o Ttni-imnxu nf thii tilcht and back when the men fell. Ills tes- trlal had and a verdict rendered subject to revorsal by the supreme court. .This cannot be determln!, however, until bis report Is In which will likely be by Monday next. i The attendance at the Ossenkop trial yesterday afternoon was 'much the utmost sang frold. ' From a con versation with , attorneya connected with the case It Is believed all the evidence In the .case wlll.be In by Wednesday night and that argu ments In the case will likely open on Thursday. The case will probnbly o larger than It had been during the to tho Jury by Thursday night or morning session. There were a great r rlday at latest, , ; ; i' many ladlen present In the audience I Court was late In assembling ow- of the witness. In detail she de scribed the cuts and bruises on tho face and head. 'They lived ' about hi no miles from Eagle. The witness did not know of any difficulty or trouble, between her husband and the defendant. An attempt to show that a difficulty between' the deceas ed and the father of the defendant was made by Attorney Doyle, but on tlon. he was in attendance on he 0 - ,Rht. llmony M l0 Ul0 b,OWH n,rrb()rut,.d which was'compsoed very largely of ,0 Judge Travis belng.de.alned objection by Attorney Gering It was . picnic at Eagle. He was acquainted " Mn (hut of n 0ir W,IU.SK,.H wll0 uU farmers from the surrounding oun- by other business and it was almost ruled out. Mr. Gering wanted the .with the Ossenkops and saw them J m (ry . p,,,,,, lntn,.8t , l0 (Mlt),omP hftIf pBRt ,)(,rre ,)(.puty ,. Jury Instructed not to consider the there on tho day In question. At the time of the affray he was on the side walk within some six feet of Ossen- ' kop and Byrnes who passed him to cether talking, lie saw Ossenkop seize Byrnes by the shoulder and nrm and the two grappled falling from the walk which was elevated about two or three feet above the cround. As they fell Byrues was underneath and Ossenkop commenc . ed raining blows on Byrnes' head and face. Then Ossenkop arose and kicked Bvrnes several times on the 'head ntid face. The witness lift be fore the defendant did. At tho session1 this morulng when court opened the attendance was . not as large as on the preceding day, the cold weather apparently suiting down the atteudance. Ths first wit tics sailed- was the witness Clear, who was on the stand yesterday af ternoon. The object of his recall witnesses. Witness had seen Byrnes drink some of both, beer and whis ky, and he had also seen Ossenkop do likewise. Had never heard of trouble between deceased and de fendant. Did not think Byrnea was known as a drinking man. Witness was ou tho ground and saw the men fall In front of the team which stood facing the walk. Witness thought possibly Ossenkop had hit the neck- yoke of the team with his heel ns the two men went off the walk. The team whs frightened. Witness differed from others as to the kicks admin iHtered placing them on the other side of the fate from the majority. , Dr. 1. C. Munger was called as a medical witness for the state and his testimony was hlRhly unsnthfactory In thnt It was as much for the one fide as the other. He stated that he niadv an examination of the body of hear anything further between the men. Later he heard one of the Ossenkops say "Keep the crowd back." This witness made an ex cellent one on bis direct examlna tlon which was conducted by Mr, Doyle. Mr. Gerlng's noss-exa mi nation d veloned the witness was seventeen years old. t On cross-examination Prouty ad mitted that he was scared and when the men fell Into th street he'ran back to tie up the hitching strtip of his team. He stood the cross-examination splendidly and was absolutely unshaken. His testimony was a strong point for the prosecution. Juror C. ('. Wescotl mnde a number of Inquires touching the locstlon of tho men ss regarded th team when they fell from the walk. In reply to another of the Jurors he stated of the case Is manifested.' George Olterle was placed trlct Clerk Miss Jessl Robertson upon caned tne jury ron. j the stand Immediately following Harrison Hudson was recalled Emll Oberle, and his testimony was and testified to the condition of the largely similar to that of the witness Htreet at the place that he, In coni who had preceded him. It was In pany with one Harley Price, had fact oulte corroborative of It In most particulars and added little to the facts already drawn out. William Hobson. an i inbalmcr at Eagle, was next, railed and testified to the condition of the body of Byrnes when he was called upon to examine It. He testified that the Dec k was broken and to the bruises and con cussions on the face and head. Oii cross-examination he developed a ureal amount of Ignorance concerning the bi. atomy and weakened the val- smoothed down the street with a grade or float. Mr. Gering for the defense endeavored to show the pres ence of beer bottles or other like ar ticles In the street but failed sig nally. Mr. Gering wanted to Illus trate the Impossibility of this wit nens hearing the sound of blows at one hundred, feet. For this purpose he took the defendant to the rear of the court room and was to deliver blows to his body. On objection by Mr. Doyle the court ruled the Illus tration out. Mr. Gering then offer- u of his testimony by being unable to Intelligently explain the reason for 'd to prove his contention. his considering the neck dislocated. Frank Harty called and testified In fact, the croHs-exsmnlntloii made (hut he was acquainted with both attempt of the County Attorney to Introduco evidence of of trouble be tween the elder Ossenkop and Byrnes. Judge Travis stated that he considered the Jury fair minded enough to consider the offer In Its proper light. The state rested at 10:45 a. in. Mr. Gering then Ktated he had a telephone message from Dr. Wil son, state health officer thnt be had quart' mined Ed. Ossenkop and fam ily on account of small pox. He had affidavits from several doctors on the road, and he asked a continu ance. N He presented a motion to have tho court direct a verdict of acquittal of tho defendant of the charge of murder In the second degree, and also to direct an acquittal of the charge of manslaughter. These hio tContlnued on Second Page.)