Morning Oregonian., December 28, 1916, Page 7, Image 7

THE MORNING OREGONIAN, THURSDAY, DECE3IBER 28. 1916.
v
BOOTH MURDER CASE
RE-TRIAL ORDERED
Supreme Court Holds Evidence
Does Not Support Judge's
Conspiracy Charge.
OTHER DECISIONS GIVEN
Decree of Circuit Judge Davis in
Courtriglit Matter In Modified.
Trust Company Directed to
Foreclose Mortgage.
SALKJI, Or.. Dec. 27. (Special.)
The Supreme Court yesterday reversed
judgments and remanded a new trial in
the case against William Branson and
Anna Booth in which they were found
guilty of murder in the second degree
for the alleged slaying and conspiracy
to kill William Booth, husband of one
of the defendants at Willamina. in
Vamhill County, on October 8, 1015.
kThe reversal in both cases is founded
m an instruction of Judere Harrv II
Belt, of the Circuit Court, relative to
conspiracy.
In one portion of his instructions to
the Jury the lower court said: . . .
"if the defendant and Anna Booth wift-e
acting together with the common de
sign or bringing about the death of
W'ilHam Booth, in the manner and as
charged in the indictment. It would not
bo necessary for both of them to have
been actually present at the place and
at the time of the alleged crime, for.
as 1 have stated to you before, each
co-defendant is bound by the act of
th other in furtherance and execution
of the common design."
Conspiracy JVot Shown.
Justice Benson, in his opinion states:
"This is undoubtedly a correct and ex
cellent abstract exposition of law, and
if the record dise'losed any evidence of
common design or conspiracy to take
the life of William Booth, there would
be no doubt whatever as to the correct
ness of the charge. We lfave searched
the record in vain for a scintilla of
evidence tending to disclose any con
spiracy or common design to perpetrate
a homicide. . . . That the conclud
ing portions of the instruction quoted
is error, cannot, therefore, be doubted
and to determine that it was preju
dicial to the defendant's Interests Is
manifest from the mere reading.
"We thus confine ourselves to saying
that an elimination of the question of
conspiracy miht well have a direct in
fluence upon a jury's determination of
the degree of crime involved in the
acts charged as a crime, and such de
termination must always remain a func
tion of the Jury rather than of the
court."
Cool County Winn Out.
A county cannot be called to account
st the suit of a private party for any
default In its governmental functions
unless there is a statute allowing it,
the court holds in the cause of Thomas
,T. Clark, respondent, against Coos
County, in which Justice Burnett re
verses a decision of the lower court.
Clark received a judgment against the
county. lie was employed by the county
as a road supervisor and was injured
while at that work. Action was
started under the employers' liability
act.
Tho appeal in the cause of the State
vs. Mordie Keeney and George W. Wol
lette Is dismissed. This cause was ap
pealed from Multnomah County and Is
dismissed in an opinion by Jutice Har
ris. The crime of arson was involved
in this cause.
Other Decisions Uiven.
Other decisions were:
Georgia A. Skinner vs. T.eroy W. Furnas
et al., appellants: from Umatilla; suit to en
force the specific performance of an oral
Agreement to convey real property; opinion
by Chief Justice Muorc; Circuit Judge Phelps
affirmed.
F. L. Meyers, trustee for the bond holders
of the Hot Lake Sanatorium Company vs.
tho Hot Lake Sanatorium Company et al..
appellants: from Union; suit to foreclose a
deed to real and personal property exe
cuted by defendants; opinion by Chief Jus
tice Moore; Circuit Judge Knowles affirmed.
H. A. Gosney vs. Andrew McAllister et al.,
appellants: froom Crook: an action upon an
award of a hoard of arbitration; opinion by
Justice Benson; Circuit Judge Duffey re
versed. Pacific Company, appellants, vs. J. K.
Cronan; from Morrow; action to recover
commission: opinion by Justice McBrlde;
Circuit Judge Phelps affirmed.
Hlllsboro National Bank vs. N'atallo Gar
darino et al., appellants: from Washington:
suit to set aside a voluntary conveyance:
opinion by Justice Burnett: Circuit Judge
Bagley affirmed.
"W. K. I'-arrell. assignee of the estate of
Hygienic Mattress Company, vs. A. E. Davis,
et al.. appellants; from Multnomah County;
application for a supplemental opinion de
nied; opinion by Justice Bean.
The First National Bank of Portland, ap
pellant, vs. Harry N. Courtwrlght et al. ;
:ippea!ed from Multnomah: former opinion
of the court modified as to court costs;
opinion by Justice Harris.
Tlehearing was denied in Anderson vs.
.Htayton Stat Bank.
PERSON ALJVTENTI0N.
S. M. Orr, of Tacoma, is at the Carl
ton. James B. Goode, of Seattle, Is at the
Norton ia.
So Skillen, of Boise, is registered at
tho Seward.
D. Bortoff, of Mcdford, Is an arrival
nt tho Eaton.
S. Binge, of Scappoose, is registered
at the Carlton.
K. L. Wilson, of Salem, Is an arrival
at the Oregon.
R. E. Mason, of Albany, is registered
at the Oregon.
F. W. Bross. of Oak Point, is regis
tered at the Eaton.
James Dick, of Seattle, Is registered
at the Washington.
Champ Smith is registered at the
Perkins from Bend.
T. W. Lusk, of Silverton. Is an ar-rl-al
at the Perkins.
W. T. Meackam, of Oak Point. Is reg
istered at the Eaton.
W. C. Jones, of Astoria, Is a recent
arrival at the Eaton.
J. E. Myers, of Prinevllle. is regis
tered at the Imperial.
H. B. Miller, of Toppenish, Is regis
tered at the Imperial.
S. E. Notscon, of Heppner. is an ar
rival at the Cornelius.
J. II. Burns, of Oregon City, is reg
istered at the Carlton.
Wayne Stuart arrived at the Oregon
yesterday from Albany.
J. E. Shade Is registered at the Nor
tonla from Husifm, Wash.
f- uetieamer, of Walla Walla, la
registered at the Oregon.
B. W. Foster is registered at the
Multnomah from Seattle.
J. W. Call, of Klamath Falls, is rnr.
istered at the Multnomah.
Harold Haley, of Monmouth, is reg
istered at the Washington.
George Hansen is registered at the
Washington from Moro, CaL
C. N. Christensen, of Yale, Wash., la
registered at the Cornelius.
Romeo LeRoux is an arrival at the
Imperial from Walla Walla.
R. A, Booth, or Eugene, is registered
at the Imperial, where he arrived yes
terday. Frank W. McCaffery. of Redmond,
is registered at the Perkins.
Charles Winegardner, of Sb,erldan, is
an arrival at the Washington.
I Kershaw, a Tacoma business man,
is registered at the Nortonia-
Mr. and Mrs. D. C. Moore, of Oregon
City, are staying at the Nortonia.
Mrs. Swan Benson, of Xewberg, Is a
recent arrival at the Multnomah.
U. S. Jenkins Is an arrival at the
Seward. He is registered from Seattle.
T. W. Goodale, of Pendleton, is reg
istered at the Cornelius with his fam
ily. Mrs. N. O. Duneklcy and Miss Brown,
of Centralia, arrived at the Cornelius
yesterday.
T. W. Robinson, of Olney. is regis
tered at the Perkins, where he arrived
yesterday.
W. C. Toumans, of Pe Ell, is regis-
Ir. D. A. Paine, Kograe Capital- t
1st, Who Died Yesterday. I
tered at the Multnomah with his wife
and daughter.
Mr. and Mrs. H. C. Seymour arrived
In the city from Corvallls yesterday.
They are at the Seward.
M. S. Pullman, of the Oregon Normal
School, arrived in the city yesterday to
attend sessions of the Oregon Educa
tional Association. He is registered at
the Seward.
Rev. Cora Klncannon Smith is stay
ing at the Hotel Multnomah, where she
arrived last Thursday from Seattle. Her
home Is in Spokane.
Captain U. G. McAlexander, U. B. A.,
military instructor at Oregon Agri
cultural College, was a Christmas day
visitor in Portland, registering at Mult
nomah Hotel.
MOUNTED POLICE TO GO
FAMOUS CANADIANS CALLED FOR
MILITARY DUTY.
Provincial Authorities Are to lake
Over Northwest Stations and As-
ume Established Duties.
EDMONTON. Alb., Dec. 27. A. Bowen
Perry. Commissioner for the Royal
Northwest Mounted Police, said today
that as soon as tho Alberta Provincial
authorities can take over the stations
in the province now held by the
mounted police this famous organiza
tion will be recruited to full strength
for military duty.
Ah order in council to this effect
says the provincial authorities will
take over all the police duties here
tofore undertaken by the mounted po
lice on January 1, 1917.
Commissioner Perry said, however,
that owing to the difficulties likely to
arise if the various stations in the
province were immediately withdrawn
from the control of the mounted police,
the order in council cannot actually
take effect until the provincial gov
ernment provides suitable men for the
posts. The mounted police will con
tinue to be responsible for alien en
emies in the west and the border pa
trol. In all probability the stations in the
Far North will be maintained. Among
the few stations which will be retained
in Alberta will be the Edmonton sta
tion. The Saskatchewan provincial author
ities already have begun replacing the
mounted police in that province.
GOW YIELDS $500 AYEAR
COAST BITI'EHFAT RECORD MADE
BV CALIFORNIA HOLSTEIN.
Twelve Hundred Poinds of Solids Pro
duced From 31,034 Pounds of
Milk From Eight-Year-Old.
SACRAMENTO, CaJ., Dec. 27. More
than $500 worth of butter was the yield
this year of a Holsteln cow, Winnie
Korndyke Cornucopia de Kol, owned
by the J. S. Gibson Company, of Will
iams, Colusa County, which has Jst
completed a year's test, breaking the
Coast record for butterfat production
and making the second highest milk
yield on record anywhere.
The cow's yearly yield was 1200.99
pounds of butter and her milk totaled
31,034.2 pounds, upwards of 15,050
quarts.
The only cow in the world that has
given more milk than this is owned by
William Bishop, of Chimacum, Wash.,
and also is a Holsteln. Both animals
were on official test.
The Gibson cow has bested the fam
ous one-year record of Tillie Alcartra,
of the A. W. Morris & Sons Corporation
herd at Woodland, Cal., although Tlllle
still is the best animal in the world for
long-distance production. Tillie still
is a young animal, while the Gibson
cow made her record at more than S
years of age.
FIREMEN WILL GIVE BALL
Vancouver Monday Night Will Hold
3 9 tli Annual Affair.
VANCOUVER. Wash., Dec. 27. (Spe
cial.) The 39th annual ball of the Van
couver Call Fire Department, will be
given Monday night. January 1, In Co
lumbia Hall. Arrangments are being
made by the committee John P. Klg
gins Jr., Fred Preston and Frank Mc
Lanc, The annual ball by the fire laddies
is the best attended social function of
the entire year. Prizes for dancers
will be awarded.
Wife Charges Murder Threat.
Among numerous other things.
George R. Stevens told his wife she
would be "the victim of Portland's next
trunk jurder" if she did not manage
thlngsiore to his liking, testified Mrs.
Ethel N. Stevens. In her suit for di
vorce before Judge Davis yesterday.
The decree was granted Mrs. Stevens.
She was married in Vancouver, Wash.,
in 1903.
:
OR. D. A. PAINE OIES
Eugene Surgeon and Banker
Succumbs to Apoplexy.
INSANE HOSPITAL MANAGED
Thirty-Second Degree Attained In
'Masonry and Big Part Played
for Many Years in Business
and Civic Life of Eugene.
EUGENE, Or.. Dec. 27. (Special.)
Dr. Dewitt A. Paine, physician, banker
and capitalist, one of Eugene's most
prominent citizens, died suddenly at
10:35 o'clock this morning, a few min
utes after he had returned to his home
from the Eugene Loan & Savings
Bank and the United States National
Bank, where he had transacted busi
ness. The cause of death was apoplexy,
superinduced by diabetes.
Dr. Paine, who was 64 years of age.
was a consulting surgeon for the
Southern Pacific Company, and had
been a resident of this city for 30
years. He was superintendent of the
Oregon Insane Hospital from 1895 to
1901.
He was a member of all the branches
of the Masonic order having lodges in
Eugene, including the Eugene lodge
Ancient Free and Accepted Masons.
Eugene chapter Royal Arch Masons
and the Knights Templar. He was also
a member of the Ancient and Accepted
Scottish Rite Masons of Portland and
wasa 32d-degree Mason.
Electric Company Started.
Dr. Paine was one of the incor
porators of the Lane County Electric
Company, which was eventually ac
quired by the Oregon Power Company.
Dewitt A. Paine was born in Paine's
Hollow, Herkimer County. New York,
October 16, 1853. He was educated at
the University of Iowa and began the
study of medicine at Montlcello, la.,
in 1S75, followed by a three years'
course at the medical department of
Central University, Kentucky. He be
gan practice at Rapid City, Black Hills.
Dakota, and later at Sand Springs.
Delaware County. Ia.
In the Spring of 1888 he came to Eu
gene, where his brother, D. B. Paine,
resided. Dr. Paine commenced prac
tice at Eugene In partnership with Dr.
J. J. McDonald. A year later he formed
a partnership with Dr. W. H. McMur
trey. which lasted until the Fall of
1891. y
Insane Hospital Managed.
Following this he entered into part
nership with Dr. William Kuykcndall,
with whom he practiced medicine until
a few years ago, excepting for a pe
riod of five years. 1895 to 1901. when
he was superintendent of the State In
sane Hospital at Salem.
Dr. Paine at Montlcello. Ia.. in July.
1878. married Beil Slauson. of Illinois.
To them were born three children, all
of whom survive. The children are:
Leona (MM. Luke L. Goodrich), of Eu
gene; Carrie Mrs. Frank Topping, of
San Francisco, and Elmer D., now cash
ier of the United States National Bank
of Eugene.
Dr. Paine was an ex-president of the
Lano County Medical Society and a
member of the National Association of
Railway Surgeons. He was the owner
of considerable property In Eugene, In
cluding the Taine block, erected 10
years ago for the Eugene Commercial
Club.
He was one of the incorporators of
the Eugene National Bank, which was
succeeded by the Eugene Loan & Sav
ings Bank, in which also he had an In
terest. He retired a few months ago
as president of the combined Eugene
Loan & Savings Bank and United States
National. He was president of the
Lane County Abstristt Company.
TWO, LONG LOST, SAFE
MAIL CARRIER AND TOM RILGA
y FOUND BY FOREST RANGERS.
Youth Suffers From Exposure and
1 mm HO Hours In Snow Without
Food, But Will Recover.
Reports from West Fork and Mariel,
received yesterday morning, indicate
that both Tom Rileb and Commodore
Fleming, who were reported lost in the
mountains in the Lower Rogue River
Valley, are safe, although their where
abouts was not named.
Mrs. O. E. Durkln, 287 Williams ave
nu, a sister of Mr. Fleming, received
both a long-distance call and a tele
gram yesterday morning. The telegram,
received at 10:55 A M., read: "Report
from Mariel today "Commodore is alt
right." The telegram was signed bv
Mr. Barry, the hotel keeper at West
Fork.
The long-distance call indicated that
Rilea was in bad condition, but it was
thought he would recover.
Mr. Fleming was a tried mountaineer,
says Mrs. Durkin. having piloted many
a party across the mountains during
the years he has homesteaded in the
Rogue River Valley. Ho has been in
Portland frequently.
Mr. Fleming has another sister here.
Mrs. William Barth, who also livs at
287 Williams avenue. His mother lives
in Salem.
YOUTH IS LOST 110 HOURS
Long Fast Accompanies Exposure
as Lunch Only Is Carried.
GRANTS PASS. Or, Dec. 27. (Spe
cial.) When rescued last night by For
est Ranger Helm and a party of search
ers, Tom Rilea had been lost In the
Rogue River mountains 110 hours, car
rying only a light lunch in his pocket.
He left West Fork afoot, traveling
light, with the expectation of reaching
Mariel Friday night.
The forest ranger reported that he
was not frozen and that he was re
covering from his exposure.
KNIFE CUTS WAY FROM JAIL
Vancouver Prisoner Digs Through
12 -Inch Wall to Freedom.
VANCOUVER. Wash., Dec. 27. (Spe
cial.) Nelson H. Evans escaped from
the city Jail early this morning by
skillfully using a caseknife to remove
bricks In a 12-lnch wall in the rear of
the city bastilc. Evans recently was
arrested in Portland and brought here
In company with his pal. Joe. Miller,
charged with burglary. Miller was
lodged in the county tail and Evans in
the city jail to keep them separated.
Other prisoners In the Jail refused to
follow Evans. All were merely serving
hort sentences and would not take a
chance on being caught to serve longer
ones.
In Scotland 23.8 per cent of illumi
nating gas is made In municipal works
to 51. per cent iti Ireland and 30.6
pcx cent ia, jsngi&na,
Only 3 Days, Starting This Morning
A wonderful photo-drama; a wonderful cast.
Besides Lou Tellegen, former leading man for
Madame Sarah Bernhardt, and husband of
Geraldine Farrar, the cast includes
SESSUE HAYAKAWA
CLEO RIDGELY
MABEL
In Paul Potter's famous and thrilling play:
The Victoria
An Englishman's highest honor is "The Vic
toria Cross." This timely photo-drama shows
in graphic, romantic fashion how the coveted
honor was obtained. Interesting new Para
mount Pictographs on the same programme.
Enjoy it today at Portland's favorite THE
PEOPLES
Alder at West Park 11 A. M. to 11 P. M.
ACCUSER IS GUILTY
Rose Luciano to Be Sentenced
for Forged Indorsement.
PAROLE IS NOT POSSIBLE
Prime Witness in Municipal Court
Hearing Against Mildred Brown
Alters Story on- Further
Investigation of Case.
Rose Luciano she who was the
prime witness against Mildred Brown
in a forgery hearing in the MunlclDal
Court was found guilty of tho crime
she had charged againet another by a
jury In the court of Circuit Judge Davis
yesterday. She will be sentenced Fri
day. Only 50 minutes were required by
the Jury In their deliberations. Leni
ency, however, was recommended. The
penalty for the conviction for uttering
a forged indorsement is from two to
20 years in the Penitentiary and it has
been held that a Circuit Court cannot
parole when the maximum penalty la
more than 10 years.
Judge Davis can pass (sentence with
a recommendation to the Governor
that Mrs. Luciano bo pardoned before
serving the minimum term.
Neighborhood Feuds Indicated.
The case of Mrs. Luciano was unique.
There were intimations during the trial
mriiriimiiflii iiiiifi rti
TODAY AND REMAINDER OF WEEK
The Fashion-Plate of the Screen
VALESKA SURATT
In Her
The
44
Story of a Fight Against Fate
PATHE NEWS WEEKLY
COMEDY
COMING SUNDAY
C6vC 7e 1 1 eqe n 'z
VAN BUREN
that neighborhood feuds had more to
do with the affair than appeared on
the surface. Tampering with one of
the witnesses for the state by another
witness for the prosecution was hinted
at, but a direct question aimed at Miss
Ora Garman by Attorneys Pearce and
Meloney demanding to know if she had
ever been offered a bribe was ruled out
by Judge Davis.
Aside from these things the evidence
tended to show that Mrs. Luciano had
been very much Inclined to fasten tho
crime of obtaining a cheek'for $20 from
Dr. It. J. Marsh under false pretenses
and cashing it after the indorsement
had been forged, upon Mildred Brown.
Mrs. Luciano was a willing witness for
the prosecution In the hearing of Miss
Brown In the Police Court.
Yet, as her evidence hinged upon a
third person. Miss Ora Garman, whom
eh said had been given the check to
cash by Miss Brown, the evidence was
not conclusive, for Miss Garman was
not in the city.
Accuser Altera Her Story.
On the return of Miss Garman the
grand Jury Investigated the matter
with the assistance of Deputy Dtetrlct
Attorney Hammersly. Miss Garman
admitted cashing tho check, but said
that it was given her uy Mrs. Luciano
and that she did not see Miss Brown.
Mrs. Luciano, summoned before the
grand Jury, then told a changed etory.
admitting that she gave the check to
Miss Garman. but contending that Miss
Brown was around the corner at the
time. The indictment resulted.
Deputy District Attorney Hindman,
who prosecuted the case before Judge
Davis, held that the guilt of Mrs. Luci
ano was substantiated greatly by the
evidence of Assistant United States
Attorney Kanklu. lie was an unexpect
ed witness and related an experience
with Mrs. Luciano very similar to the
swindle of Dr. Marsh, In which an evi
dent attempt of the woman to collect
money to which she had no right was
frustrated by the suspicions of the at
torney. i ft m it fya
Latest Sensational Production
Victim"
GEORGE WALSH IN "THE
ISLAND OF DESIRE
- - nir
STATE MUST REFUND
Judge, Galloway Says Interest
Need Not Be Paid.
SPECIAL FUND NECESSARY
Defendants Contend Other OlM
Pending Differ Materially From
One Decided; Legislature
to Bo Appealed To.
SALEM. Or.. Dec. 27. (Special.)
Judge Galloway, in Circuit Court to
day, signed the final decree in the
lirst of the seven Hyde-Benson cases
to bo adjudicated. The decree la posi
tive that the State Iind Board must
repay out of the school fund $1.25 an
acre for the COO acres Involved in the
suit, but does not compel the Board
to repay the interest accrued from
school land loans slno4 about 1898.
The decree also varied In another
particular from the original statement
made by Judge Galloway last week in
tentatively deciding the case. Today
he made repayment of tho money an
absolute essential, and the cancellation
of the title held by the Western Lum
ber Company, who obtained the Linn
County lands from Hyde and his associ
ates, is contingent upon the state turn
ing back the original purchase price.
Judge Galloway. In handing down his
decree, made- the statement that as tho
WASHINGTON AT PARK
Continuous.
11 a. m. to
"E A
Legislature is about to convene steps
could be taken to see that a law Is
passed providing not only for repayment
of tho $1.23 an acre on the lands in
question, but on all lands covered by
other Hyde-Benson cases now In proc
ess of adjudication.
From statements made by members
of the State Land Board and by Attorney-General
Brown, It is probable that
tho Land Board will be required to get
an appropriation to repay the money.
There are no funds now available, "it
is said.
Judge Shaw, of Portland, one of ths
attorneys for the defendants, said to
day that much of tho land Involved in
other counties of the state Is In litiga
tion from a slightly different angle
than the lands Included In the case
finally decided today.
He said that selections of some of
the lands In all of the remaining six
counties where decisions on Hyde-Benson
cases are still pending have been
subject to acceptances by the depart
ment at Washington. As a result, he
said, the status of the lands differs
from that of tho 600 acres involved in
tho Linn County case.
As to whether he would appeal from,
tho decision of Judge Galloway, Judge
Shaw was unable to say today.
The lands originally wero taken up
by Hydo or his associates, exchanged
for lieu lands and then disposed of to
some third party, in many instances.
Judge Shaw says, the selections mad
were either accepted by the Govern
ment, or a notation was put upon tb
correspondence to have the local land
office under whose Jurisdiction the land
was situated note an acceptance upon
its records.
In ono Instance in Lane County, Judg
Shaw said today, the Government used
a portion of tho land as a grazing sta
tion and received grazing fees for Its
use. He asserts that this action on th
part of the Government is contended by
the defense as tantamount to an acceptance.
11 p. m.
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