Show n BENBROOK CROSSEXAMINED His Testimony Different from Ledas t in Some Particulars The witness was then placed under crossexamination by Mr Brown and In answer to questions gave substantially jhil substan-tially the same evidence as that upon I1l his direct examination with reference ti to his going to the cafe being directed to the room In which Miss Stromberg Jl was seated by the waiter Daly the ordering or-dering of drinks and thu dinner Ills testimony differed very materially from that given by l Miss Stromberg In regard to the dinner as shown by the follow f inK questions and answers 1 Q Dinner was served and eaten A v Yes sir A 385 Q She ate and you ate A Yes port sir ltSJ sirQ Was It not true Mr Benbrook ay ra that that dinner was put on the sideboard H side-board and not eaten A No air jjcr Q I had not been eaten A I had been eaten 5t 1 Q You heard Miss Strombergs testimony tes-timony A Yes sir B Q That It was not true that that dinner had been eaten A I had S been oaten S Q You are positive thatA Yes su jslrTho S The witness was unable to slate how 1 long a time ilapsed from the lime he ff ontiTCd the room whore Miss I Strom I berg was sluing until hu heard the S knock on the door and Burton C Morris S come Into room U t The wJlne wan next questioned E about the writing and sending of the SJ notta no oren referred to during tho L L i fl trial An on the direct examination he staled that during the fonvenwulon 1ClT Mlstj Stromberg mentioned that aim nnS had an engagement to go to the dog and pony show but said she wouldnt IeElc bo homo when tin party called for her Mr I Benbrook so he says suggested jurfr 1 the writing of a note or said hint under un-der similar circumstances he would write a note and let the party know lrfl iD The waiter vas rung for and asked for writing materials Miss Stromberg d1le r making the request The maklJh lefUeHt paper was brought UCnbrook staling that he believed be-lieved It was plain paper although he wei would not state positively Ue remembered vctt remem-bered that Miss Stromherg wrote two U jc t notes but no more LEDA WROTE ONLY TWO NOTES Q Didnt you see her write another ¼ i note A Two altogether Q I mean another beside those ANn Gri1t4i A-Nn Kir w 1 Didnt she there write one note ti 1 1 for the waiter and send him out IDl with It and then go out and draw It ieH8wi f back again A Not to my recollection sJSfofl Q AVell do you say that nhe did Ie i not f A I say that to the best of mj aI Ie recollection she did not still > vxi Q You heard her testimony here on S j ho stand A Ye sir ii S p 0 Were you watching It closely AYes I iCjh A-Yes sir o O Q And you nay I Is not true to the bit of your recollection that nhc rlc S wrote one note and delivered It to the S waiter then called him back agaIn Aol t A-ol to tim best of my recollection 1e Q Did the waiter come and get I notes more than once A No air S MO I Q You heard her directions to the OtJ waiter about tin notes A Yo sir p Q What were her directions A rdOfl to I She told him to send the notes out and senl 1 y r I SJflbauorB that she wpuld note like an answer to Miss rF < 2 IB It not true that she told the 1101Ce 01 waiter she did not want an answer to CI01Ce i MIHH Nelbaucrs note A No flirt she n5ic i 1 1 said i ahc wanted an answer to Miss 15 5 Nclbauerjj note 1S Q Didnt she tell you that she andS I and-S 1 Mlss Nelbaucr vore not on speaking S terms A No sir I jO SUGGESTION OF A C11APKRONE 015 ci I The witness testified that lH near aa U j ey lie i itiM remember It was at Miss pOln t I fctfimb lr suggestion that the note Y was writn for Mirj N lbau < r to come I O 1 I 1 1r11 I4i i I 1 1 Jf GceJ over and take dinner with them He could iot remember the contents or the note although It was read t him at the time It was written lie eould not remember whether the note aaked Miss Ntlbaner to come aver and chaperone ls Stromhere and hlnwelC at 1 dinner din-ner party but thought those were the words used And then Mr Brown asked thl following questions Q Why didnt you say why we have had dinner ve dont want her over hero to dinner A 1 dicint have anything to say about H Q Why wot She was nsUcd over I theme to chapprono you and Miss Stromberg to dinner A Miss Strom berg was writing the notej1 didnt die I tiitj it I Q Wore you trying to decelvo Miss j Nelbauer bringing 1 1 her Qvcr there and trying to make her believe that she I was going to get dinner when you had already eaten A I dont remember I Q Is It your best memory that she 1 was invited to help oat the dinner I She was not Invited I to clean up the dishes merely or io eat tho cold food that you had left A She was nol Q Now If that was tlu note which Miss Stromberff road to you why j I didnt yon say what Is the sonse of sending such 1 note as that when we have just eaten A T dont know I lont why whQ Q Did she giveany direction to the waiter about the Morris note A Not that I emembcr > of Mr Benbrook testified that though I Miss Stromberg had said that she wanted to seo him on business she did not stale that business to him Mr Brown asked him If he wus a married man to which witness r pled In the afllrnmllve and then counsel 1 put to him the following questions NOTHING IMPROPER Q You say there was nothing Improper Im-proper between you A No sir Q You considered 11 perfectly proper prop-er of course for you and her to be dining 1 hero alone and drinking A I suppose HO Q Miss Nelbauer did not appear of course A No sir Q Nor send back any answer A No sir Asked as to how long It was from the time the notes were sent oUt until Morris rapped on the door Renbrook was unable to say but said the thought that struck him was that the messenger had made the run and had come back to collect for it that It must have been about ten minutes Witness testified that It was not true that Morris entered room n 2 without rapping thai he Benbrook opened the door JJe resumed his seat or was about to when Morris rushed at him orls struck at him calling him a vile name said that It was not true that Morris struck him In the face In room 3 The witness testified that Morris struck at him thc second lime but Miss Strom berg Jumped between them He hail no recollection however that Miss Stromberg asked him to leave the room In fact did not remember that she spoke to him at all The defendant was then asked if there was any scullle between them ir there was any loud noise made while they were In room 8 if there was enough so that It might have been heard In the next room and lo all of these questions the witness answered In the negative i Latc S The delivering of the gun to Ben jrook by thc waiter Daly as he claims vas then gone into Mr Brown asked Benbrook if when Daly carried tho gun upstairs he did not tell him that ho gun had been ordered hv fCoeiirv hat the gun was for Keene and w not for anl him and the witness replied that he lid not know and his only excuse for taking It was because Daly shoved It ut him DIDNT GET THE GUN TO USE ON MORRIS Q Didnt you take thai gun to use on the person of Burton Morris A No sir 11 wjis done In a moment of excitement and I didnt think any thing about II Q Whom did you expect to use thai gun on A I dldnl expccl lo use Hon H-on any one Q Although you had had this quarrel quar-rel although you had told Kccne this story about Morris tiding as a mad lUii that your life was In danger and that you wanted protection you had no thought that It was t be used on Burton Morris A 1 never stopped to think anything about il The witness only heard one remark or two between Kecne and Morris during dur-ing their interview In room 3 He heard Keene say that if Morris went Into room 1 Bcnbrook would kill him and Morriss reply which was that he would go in there and kill 1 the On direct examination the witness tesUfcl that liu was so scared he hard Iy knew what he was doing Counselor l Lot thc prosecution yesterday asked him If ho was so afraid of Morris amid wantel protection why he did not all go out of the room with Keene or Daly or both of them and he replied that he did not know that hp was excited excted and frightened He was also asked why when he saw Morris go Into room II i he did not go downstairs then hit lie answered that he did not know why lie rang for Duly so that Daly might mitht go Into No3 close the door get his hat und give him a chance lo escape although Limo witness stated that he would have been willing to go without his hat if he bad not been 10 afraid of Morris nCralt In answer to a question Benbrook slated that he was five feet eight or nine inches tall and weighed 15 pounds the last tlmo ho was weighed Counsel asked him If he was not about abou lie same size as Morris but he replied that he did not know replcd THE FIGHT IN ROOM ONE He was next asked about the conflict In room 1 and If he had not shot at Morris shooting a hole through the hat which lie his wore on head or held In his haul before Morris clutched 01 him by the throat or struck him In the face as testified to In the direct exam ination but the CXUI witness wag very posi lye that thin was not the case that Burton Morrla threw the cae hat ov uroppeu urn nat on the tloor at the same time striking Henbroofc In the face Bcnbrook could not say with which hand Morris was striking flIh strikhumg him or with which hand he held him bv hll the throat but his best Judgment was lint hand the striking was done with the right I hanQ Q Dont you know that you had that gun out and hot him while he held that hat No sir whlc Q And before It wag thrown down A No sir Q And that you shol thtoUh the door as ho clmc A No sir Q Dlllt he DuB a gun7 A Not that I saw Q Did you eec any Ol l gums there A No all I Q During lhls entire shuggle A No sl simTIlE I THIS DEATH STRUGGLE The struggle of the two men In room 1 the death struffs as It llath tlIHI proved was I then Inquired into very l closely and j tIme defendant was aakcd wa lRltc how It was that It was possible < 1 I POsllble under time r rcum I stances stated by him Ui dijrSlioil clutching him by the throal < Iatell one l hand and beating him on the head with I the other for him to net his gun out of his pocket MOITIH beIng on top In the trrray and nhdot Morris HP a bail I would enter time body of the dcceasd tlJ as It did hut the I llt linens wlnlls was at much al u loss > to cxnlnln in UI aliorneys were lo xmderaland how uJ < It could be Ho was asked If he did not take his hI I revolver in his left hand lo do the I shooting but said thai he did not hoolnS you know when you pulled I your gun out A No sir I do not O Do you know whether you pulled 11 out before hg released his hold of YOU He had hold of me Q His person was right I against ours A I dont know Q You dont know very much about this t fight do you A Just what l I have told HJ Q When he fell there on top of you 1 I how did you get him ofC A He Iqoacd hula hole I I I Q What made him do that A I dont know S I I Q Then what did he do A J gave 1 shove and was struggling to got up > f 1 Q Did you gel ul A Yes sir Q Clem up A Yes sir I Q Did you do anything when JOll got up A Wo both got up at about I the same time Q Did you pull him up A I dont I know i Q Did he strike you again A We were clenched and struggling after wo I somewhere by the I got up he had me hands or wrlslo then I gave my hands I ii I lerk and wo fell I Q I You fell A We both fell 1 Q is It hot lru < that he fell first and you Jumped astride of him and began I striking him A No sir < Q You tell that to this jury do you as positively as any of Lime rest of your testimony A T do Q What anime doing In the way of struggling A I cannot explain it I I Q Was he struggling with his hands I or his legs A We were struggling I and that Is all T know I I Q 1 he moved his hands In anyway i any-way I want you to explain It to this Jury A I tb lo nol know DIDNT KNOW MAN WAS DEAD I Q Mr Benbrook dldnl you know that that man was dead at that time and could not move his hands A No I sir I 1 lid not llnot Q And didnt you I know you were 1 kiw 1I I I I jjW II II I I I t I KfkSu f I NrBe9broo 1 L15Le919 9 T jcr Hu5JtrcL 6 testimony striking him with the barrel of the gun A 1 dont know I might have done It Q Do you mean to say to this jury that you did not know that you were striking him A I did not know Q Then you mean to say that you didnt know you were defending your life at that time against that dead man A I did not know the man was dead Q Did you think you were defending your life when you were striking him over tho bead with the barrel of the gun A 1 thought < I was defending my life all through the struggle The remark made by l the defendant to the otllcor that It was not his gun and ho did not know anything about it was then Inquired into The defendant replied re-plied that ho did not know what he meant by l making the remark if ho made It Mr Brown asked him why if he had been using the gun in sclfde fcnse he did not tel tie officer so Ben brook replied that he did not know Ho was asked if he did nol say that he did not use the gun but denied this alalc ment Q And It was a falsehood that you did not know anything about 1 A I knew who gave me the gun Q Why did you tel that there in the presence of lip dead A I dont know why I did I was scared Q You were scared and you were afraid l you would be prosecuted A No sir DID NOT SAY I DIDNT USE GUN Q You say you didnt say I didnt use the gun A Not lo my best recollection recol-lection Q Can you remember what you didnt say A I didnt say very much 1 ont think Q You were not so excited but what you kept your mouth shut A I dont remember of talking very much Q l you were so excited and frightened fright-ened why didnt you explain that you did all this In selfdefense A I dldnl know that I had explain not there Q Ana It was because you uitlnt I have to that you were cool enough to keep l your mouth shut A I dont lea W DID NOT SHOOT AT ITACKDIUVEtt The condition of the witness on the night prior to and the day of the shootIng shoot-Ing was then Inquired Into particularly with reference to whether or not ho wag sober lie denied thai he was under the Inlluenco of liquor denied that ho had taken a shot nl a hackdriver over the fare charged by time driver denied that he had trouble l with the hackdriver aaying that he had ridden bin a short distance In the hack and its owner tried to collect 2 he objected saying that ho did lot wish to buy the hack whereupon a Inn seated on the box with the driver uald Sl was enough and thai was all there was lo the matter Mr Brown asked him if il was not rile that Instead of giving the hackman a dollar he had pulled out his gun and shot at him a couple of times but Bon brook said It was not true Ho ad milled that he was In the Gaiety saloon sa-loon on the morning of the tragedy and that his revolver had been accidentally discharged He was asked If he had not had trouble with Busby tho bartender and had fired the gun at him but said he had never had n word with Busby In his life I After leaving the Gaiety saloon Ben brook went to the home of Mr Wells to see his friend Stone who was going to San Francisco with him Ho was asked If It was not true thai his revolver had been taken from him while he was ul Mr Wellss house but denied this said Mr Stone had 1 smaller one so they concluded to lake Limit and leave the I larger one with Air Wells lIe wis asked why ho went to Wellns house at that hour In the morning somowhero I between 4 I and r and replied thai Stone had left word for him to come up there He said It was not true that he and I Stone had been having trouble alI had agreed to arm themselves and meet together I to-gether A PREVIOUS SHOOTINGMATCH S I Benbrook won next questioned about his having killed a man In Arizona He j j said he was deputy nherlff at the time they had a warrant to arrest a juan j t When the man saw the posse he fired i at them All the members of the posse l fred at the man he was killed hut j Benbrook was unable to stale whether 01 not he had done the killing kiing Thc testimony given by rtonbrook I nbout Miss Stromberg and 1 Morris passing the cafe when he was In there did not agree with that given by Miss Stromberg 1 will be remembered hat j IHhe stated shespoke to Mr Benbrook aw they passed the cafe and that Morrln I tipped I his hILT Benbrook says she did I not speak to him and he does not think I ho could ho seen from the Street by non n-on passing Ho was then I asked If I he sometlmoK drank too much became Intoxicated but yjild lu > had sometimes felt the In llucnee of liquor but never became KO Intoxicated that he did nol leo whut he was doing I toiinsH wa questioning witness about LImO hat which he wore to the police I po-lice station after the tragedy and about J remark made with l reference to tIme I l l hole in I i by MivMulvoy i when Judge 1 Jlllen asked him to suspend his quea I Honing until 2 oclock and the court took a recess until that hour l |