Evening star. [volume] (Washington, D.C.) 1854-1972, 1899-11-08
THE APPEAL OF M. w, FALK
Arguments of Counsel Today Upon the
Points at Issue.
Assignment of Errors Alleged to
Have Been Made by Lower
Court-"Utah Act"

Arguments Were submitted today before
the Court of Appeals in the case of Max
fmilian w. Falk, convicted of adultery and
sentenced to Imprisonment in the West Vir-
ginia renitentary at Moundsvile for the
period of six months. The case heretofore
has attracted much public notice princi-
pally for the reason that during the pro-
gress of the trial the defendant fled the
jurisdiction of the court and was al liberty
for several months. He was finally appre-
hended in New York city and returned
here. Motions for a new trial and in ar
rest of judgment were submitted and over
ruled and appeal noted
The cause involves many interesting
points of law. and 1t is understood to be
the intention to carry it to the Supreme
for the purpose of securing from the high
est tribunal in the land decision as to
whether or not the Utah act" applies to
the District of Columbia.
Falk was indicted by the grand jury
April 4. 1893, for having committed adul-
terry With Hattie Minnie Davidson to which
Indictment he pleaded not guilty. jury
was sworn to try the case January % last,
and having heard the evidence In part,
vas resnited until the following day. The
I'D OF January the court proceeded with
the trial of the Strather murder case. and
the jurors of the regular petit jury were
sworn on their voir dire and examined as
to their competency for trying the issue in
the murder case. The panel being ex-
hausted by reason Of challenges and eX-
cuses without having completed the jury.
the clerk was directed to draw from the
jury box forty names, the persons so drawn
to be summoned to appear the following
day.
Resumption of Hearing
The court resumed hearing of the Falk
case January "a. and the defendant. being
called, failed to respond. Thereupon his
attorneys requested permission of the court
to withdraw from further connection with
the cause, which was granted by the court.
After further hearing of the evidence on
behalf of the United States the jury re-
tired to consider it's verdict, and having
returned into court the defendant was
called to hearken to the verdict and fail
ing to respond, the jury returned its YER
dict of guilty as charged in the Indictment.
thereafter, on January "A. the hearing
of the murder case was continued. and
the impaneling of the fury was re-
sumed and the marshal made return into
court of the names drawn from jury box
and manner of service The jury as corn
pleted contained the names of George n
Fisher and Albert Beers. who had been
sworn as jurors in the Falk case. January
Is the defendant Falk, by his attorney,
filed q motion for a new trial and also
motion in arrest of judgment. which the
court declined to entertain. Motions for a
new trial and in arrest of judgment were
beard May 16, however, and the court over
ruled toe same and sentenced the defendant
Falk to Imprisonment at labor for the pc
Rod of six months. Falk. by his attorney,
appealed to the Court of Appeals.
Alleged Errors.
In behalf of Falk the following errors
We're assigned:
The court erred in holding that there was
law in force in the District of Column
bia making the alleged offense with which
the defendant w. char uD6ar in
dictment crime.
The court erred in holding that the in
dictment found against the defendant
charged an offense against the laws in
force in the District of Columbia.
The court erred in permitting and in
structing the jury to hear and receive tes-
timony against the defendant and on be
half of the government in support of the
Indictment during the absence of the de-
PENDANT.
The court erred in permitting and direct
ing the jury to hear and receive testimony
against the defendant and on behalf Of the
government in support of the Indictment
without the defendant below being repre-
scented by counsel or being present.
The court erred in swearing on their voir
dire certain of the jurymen sworn in the
case and, before its final termina ion, in
another felony case, and after being 81
sworn and accepted the said jurymen
again resumed their position in the jury
box in the cause until its final termination
1hestiShs
Whether or not the act of Congress of
March g. 1857. under which Falk was in
dicted is applicable to the District of CO.
lumbia, his counsel contend, is a mooted
question. The only way, counsel argued
today. to arrive at the true intent and
meaning of the act of 1887 and the sew
eral acts of which ii is an amendment and
the mischief sought to be remedied by Con-
gress in enacting the same, is to look a t
q haV rod an IA
existed at the time of the passage of the
acts in question. AS is well known, the
object and purpose Of Congress was to
wipe out the evils resulting from pulygany
in the territory of Utah, stated counsel and
while the territory itself is not mentioned
in every section of the several statutes. it
is apparent that the latter We're enacted
with other end in view
adultery is an cffense involving moral
turp1tude, so counsel argued. Here,
then, we have a crime, adultery, infa-
rpous one, the punishment of which is in
famous, and involving moral turpilude
How many more ingredients are required
to constitute an offense TO make il a fell
ony? If the crime charged in the indict-
ment against the defendant be a felony
then what results? In leading case this
principle is enunciated: "A leading principle
that pervades the entire law OF criminal
procedure is that after indictment found
nothing shall be done in the absence of
the prisoner. While this rule has at times
and in the cases of misdeneanors been
ne ioiiAeu SeI III 1eIoHIeS II is not
in the power of the prisoner, either bv
himself or his counsel, to waive the right
to be personally present during the trial
If he should however, voluntarily escape
and remain away during his trial, has the
court power to proceed to verdict during
his absence? In other words, is it within
the power of the prisoner to waive it? IN
der the authorities, it is not
Queries Propounded.
In concluding, counsel for Falk asked:
Had the court the power, after the jury
was sworn to try the issue between the
United States and Falk. and before the
trial was concluded, to adjourn the trial
until the following day, respite the jury
and then swear the members of said jury
upon their voir dire in murder case and
Professionally accept two members thereof
and then upon the following day resume
the trial of this cause with the jury as