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ing on the south side. Witness opened the door and found the body of Schaffner lying on the floor, with the legs or feet against the door and the head to the north-west. There was no light in the building and witness lighted a match. On the right side of the body, and about three or four feet from it, was a revolver, which witness picked up and recognized as one he had seen in the possession of plaintiff in error the previous evening when witness was at his place of business, at which time Pies was present, and witness, Pies and plaintiff in error had a talk about the trouble they had had about fires and keeping watch for anyone who might try to burn their factories. At that time the witness asked plaintiff in error if he knew of any motive anyone had for wanting to destroy his property and he said he did not. Witness asked him if he was insured, and he said no; that he saw a man on Elston avenue who told him he could have insurance; that he was insured but did not have the policy. The witness further testified that when he picked up the revolver from the side of deceased he asked plaintiff in error whose it was and he said he did not know. Witness then asked him if it was not his, and he said it was. Witness inquired how deceased came to have it, and plaintiff in error said he asked for it, as he wanted to watch the building, and plaintiff in error let him have it, but later said he did not give it to deceased but laid it on a table. Witness testified plaintiff in error said he was walking up and down the street when Schaffner shot himself. He also told witness that Schaffner had said something to the effect that he had burned the place across the street, (apparently referring to the plaintiff in error's shop which was burned down;) that he was attempting to burn the present place of business, and that was the reason why he was going to shoot himself. Schaffner was still alive when found, but died about ten o'clock without having recovered consciousness. There were five loaded cartridges in the revolver and one exploded cartridge under the hammer.
Felix Rausch, at whose house Schaffner boarded, testified he and Schaffner were working for Pies when his shop burned down. Afterward they worked for plaintiff in error. The witness worked for him seven days, and said there were small fires there every day and big fires the 29th and 30th of December. When the fire occurred the 30th witness and Schaffner were notified of it by plaintiff in error and helped put it out. That fire was in the dining room of the residence of plaintiff in error, his residence being in rooms over the shop. The fire on the 29th occurred about half-past one in the afternoon. Witness was not in the shop but was in a bakery in the near vicinity when notified of it. He went to the shop, and testified he saw and smelled kerosene on a window sash, and when the fire was extinguished plaintiff in error told him to break up the frame and burn it in the stove. About a half hour afterwards an inspector came and made an examination. He asked plaintiff in error how an outsider could come in the shop in the daytime and pour kerosene on things. Plaintiff in error replied the vagabonds were up to anything. The witness further testified that on the morning of the 30th, at about eight o'clock, plaintiff in error had a revolver and was showing Schaffner how to use it; that he pointed it at the intestines of Schaffner, and witness told him if he did not know how to handle a revolver to let it alone; that if it was fired Schaffner would be dead. Schaffner then took the revolver and put it in a box up near the window. This was the revolver offered in evidence. The box it was put in was a white paper box, having a cover which could be raised. Schaffner had a little revolver there, but there were no cartridges in it.
Dr. Reinhardt, coroner's physician, testified that he performed a post-mortem examination on the body of Schaffner on December 31, 1913. He described the wound and said it was caused by a thirty-two calibre bullet. He did not discover any powder marks, but did not say he made any examination for them. He testified death was caused by the bullet wound, but that he had no opinion, from the examination he made, whether the wound could have been self-inflicted.
Joseph Groser testified he was in the real estate and fire insurance business and solicited plaintiff in error to take insurance on his shop. He at first said he was not prepared for it, but in December witness received his order for insurance to the amount of $1400. The witness testified the policy was never written up but that the plaintiff in error was protected
The plaintiff in error's former place of business which burned down was insured, as we understand, for $1200, but he was paid only $840 for the loss. On the 28th of November, 1913, he borrowed from Schaffner $200, for which he gave a note, due in six months, for $210, bearing interest at seven per cent from date. This note was found in Schaffner's possession after his death. Schaffner also at a later date loaned plaintiff in error $140, which was acknowledged by receipt but no note given. The uncontradicted proof was that plaintiff in error and Schaffner were on friendly terms and had never had any controversy or falling out with each other.
The prosecution was permitted to prove, over the objection of plaintiff in error, by the daughter of Pies, that she never received any letter from deceased, that he had never made love to her or courted her, and that her acquaintance with him was slight; also by Rausch, over objection, that deceased did not offer to pay him $10 to set fire to plaintiff in error's premises. The prosecution further proved, over objections of plaintiff in error, experiments made with a thirty-two calibre revolver and bullets similar to those in the revolver of plaintiff in error, fired at a piece of white paper to determine the distance at which the paper would be powder-marked. The sheets of paper used in the experiments were introduced in evidence. The sheets the witness testified were six, twelve and eighteen inches from the revolver when fired had powder marks on them, but the one twenty-four inches distant had none. Felix Rausch and Mary Rausch, his wife, at whose house Schaffner boarded, testified he was right-handed.
Plaintiff in error testified in his own behalf that he was thirty years old, married, had one child, and that he had worked at the cabinet-maker's trade since he was fourteen years old. He had known Schaffner since July, 1913. At that time plaintiff in error had a shop on Elston avenue. Schaffner, Rausch and eight other men were employed by him there. That shop burned in August or September, 1913, and plaintiff in error established another place of business at 4300 Crawford avenue. He testified about the fires at his place on the 29th and 30th of December; that the fire marshal called in the afternoon of the 30th, examined the premises, and plaintiff in error told him all he knew about the fires. The fire marshal notified plaintiff in error and Schaffner to appear at his office at ten o'clock the next morning and have Rausch with them. He testified that after the fire marshal left, Schaffner said he would not go to his office next day. Plaintiff in error told him he need not be afraid to go,—that the marshal's office wanted to find out about the fires,—and he told Schaffner he would meet him and Rausch the next morning at nine o'clock at a place designated and the three would go down together. It was then about six o'clock. Plaintiff in error testified he was at that time expecting two police officers who had watched his building the night before. No one was in the building but plaintiff in error and Schaffner. Plaintiff in error was sitting at the front of the shop, looking out on the street, and Schaffner was walking back and forth in the rear. About seven o'clock Schaffner said he wished he was dead. Plaintiff in error inquired what was the matter with him, and he said, “Trouble—trouble. You remember when I was working in the summer time for you and you fired
me? I was mad because you fired me and kept another man working, and I paid $10 to my partner to burn your place down." Plaintiff in error asked Schaffner what he was talking about, and told him he had too much beer. He was drinking beer from a pail, and plaintiff in error told him he had got too much beer in his head. Schaffner said, “Every fire in your place I made, and now I don't want to make any more trouble for you and your wife; I am done," and then the shot was fired. There was no light in the building and plaintiff in error inquired what was the matter. Receiving no answer he left the building and ran over to Pies' house, in the next block. Pies was not at home, and he then went to a saloon near by, where he found him. He told Pies to come over to his place,-that Schaffner had said he burned Pies' place and his, and that he had shot himself. At Pies' suggestion they called up the police, who came in fifteen or twenty minutes. When the officer found the revolver lying by the side of Schaffner's body and inquired of plaintiff in error if it was his he said it was; that it and a small revolver Schaffner had there that day were together in a small box. Plaintiff in error testified when the shot was fired it frightened him and he grabbed in the paper box where he had put his revolver but it was not there; that he had not seen it since putting it in the box, about ten o'clock in the forenoon. Plaintiff in error testified he and Schaffner were on good terms, and Schaffner had talked about going into business with him, but the plaintiff in error did not want a partner. He paid Schaffner the union scale of wages,-forty cents
There was no evidence tending to show plaintiff in error and Schaffner ever had any trouble or that any unfriendliness had ever existed between them, and there was nothing in the proof to indicate that plaintiff in error ever suspected Schaffner of being responsible for any of the fires which had occurred at his places of business or to show