Evening star. [volume] (Washington, D.C.) 1854-1972, 1904-03-01
HEARING ON APPEAL
Second of Post Office Cases
Under Consideration.
TYNER AND BARRETT
INDICTED FOR CON.
SPIRACY AND MISFEASANCE.
Attorney Hershey Receives Admoni-
ton From Chief Justice Alvey-The
Arguments Advanced.

ments to start down the gauntlet of the
law occupied the entire session this morn
ing of the Court of Appeals of the District
of Columbia. The appellants are James N.
Tyner and Harrison ]. Barrett. formerly
attorney general and assistant attorney
general, respectively, for the Post Office
Department. The appeal was taken from
a ruling of Justice Pritchard in Criminal
Court No. 1, in which the original demurrer
Of Tyner and Barrett against the indictment
was overruled. The arguments of counsel
were heard today, and the appellee. repre-
sented by Assistant United States District
Attorney c. A. Keigwin, was given until
next Thursday in which to file his brief on
behalf of the government. Until then no
decision can be announced by the court.
The arguments were heard by Chief Justice
Richard H. Alvey and Associate Justices
NJ F. Morris and Seth Shepard. Attorneys
o. F. Hershey and A. S. Worthington rep
resented the appellants.
In two instances the counsel for the ap-
pellants drifted far enough away from the
relevant facts and law to incur the admon1-
ton of the court. In the first instance
Chief Justice Alvey took it upon himself to
protect the integrity and dignity of the Of
flee of the President of the United States.
Mr.. Hershey, apparently in an endeavor to
gain the sympathy of the court. referred
to the gray hairs and long service of Cen
eral Tyner.
Look at this venerable gentleman" said
the attorney, who for forty years has been
soldier, statesman and public official, whose
integrity had never been challenged. And
now, when he is in the eightfeth year of his
life, paralytic, he is haled to this bar by
the hirelngs of the Post Office Department
and prosecuted under the guise of an In
vestigation. What is more extraordinary,
the President of the United States has gone
away beyond and outside the scope of his
duty
But this is as far as Mr. Hershey was al
lowed to proceed.
NO" said Chief Justice Alvey, raising
his hand, such reference is highly i'm
proper
II only want to show began Mr..
Hershey, in an effort to explain, but the
court again interrupted.
Never mind said the chief justice,
proceed with the argument" and the in
cident closed.
What Indictment Charges.
The indictments under which the gov
ernment intends to prosecute charge,
first, a conspiracy to defraud the govern
ment. and, second. a conspiracy to COM
nit an offense against the government,
involving misfeasance Of office.
The court remembers" said Mr.. Her.
shey. how under the regime of the old
English kings the charge of conspiracy
was trumped up upon any sort of facts,
and sometimes upon no facts at all, in
order to enable the government to dis
pose of persons who were politically OBJ
jectionable. There is something in this
case which has that flavor, and knowing z
how tiimsy is the character of these
charges, am at loss to know how to ar
gue.'
Mr.. Hershey stated that no crime was
charged in the indictments, and that even
admitting all allegation of fact and law
n n n hcr rGrlI Il6 hna a.
1t is not stated, he went on to say that
the defendants defraudeds the govern
Inent, or even that they have been guilty
OF misconduct in Office. The Indictment
does not charge a breach of duty but q
conspiracy to commit a breach Of duty,
by leaving something undone that should
have been done
According to Mr.. Hershey the indictment
Is cleverly constructed mosaic, and If
one essential fact in this peculiar combi-
nation of facts falls the whole will fall
He said the Indictment charges that the
schemes Of the eighty companies mentioned
are wrong In some particular, and that
Mr.. Tyner let them know that they could
get around the letter of the law. But -
said Mr. Hershey, "Mr. Tyner did not
profit by it,
No Violations Charged.
The attorney said also that 1t was not
charged in the Indictment that the COM
panies referred to violated the law, and
still the government assumes that Tyner
knew they did.
These are material charges, and as they
fail the whole indictment must fall" said
Mr. Hershey. THE entire Indictment is
based too much on mere assumption" He
held that there is everywhere an absence
of specific charges.
"A misconception of Tyner's duty is the
foundation upon which the government has
built this entire romance" again asserted
the attorney.
1T is nowhere charged that a fraud or
der should have been issued, and unless
this were the case there could have been
no conspiracy"
The Government Side.
Mr.. Keigwin, replying to the arguments
for the defense, stated that 1T was not al
legged that the companies were carrying on
unlawful business, but that Tyner and
Barrett had concluded they We're that a
quently Barrett resigned from Office and
represented the companies against the Post
Office Department.
Action was purposely delayed" said Mr.
Keigwin, ito advance the pecuniary inter-
ests of Barrett. The same mail that car
ried to these companies the notification
that their schemes were in violation of
certain provisions of the law carried also
the announcement that Barrett, whose sig
nature appeared at the bottom of the no.
tice, would resign from the Post Office De-
paTImeHt Wltnln SIX weeks, ana would be
open to employment by any of these COM
panies which cared to contest the law and
regulations of the Post Office Department.
This was the same law upon which Bar
rett, as assistant to Gen. Tyner, had based
the notification to the company.
Counsel for Tyner says these cases were
not properly before Gen. Tyner, and were
beyond his jurisdiction; but l say he Is
estopped from pleading this defense if it is
shown that he took advantage of the fact
that the cases were before him. 1t is not
material whether these companies were in
violation of the law or not. 1t is Just as
bod to- !, plyv, tl sov, N