Evening star. [volume] (Washington, D.C.) 1854-1972, 1908-04-11
COURT REFUSES new TRIAL
PLEA OF DEFENSE IN HARPER
CASE oVERRULED.
Sentence Delayed Pending DISPOSE
ton Of Disputed Points In Bill
Of Exceptions.

ton Of Disputed Points in Bill
Of Exceptions
| After arguments lasting for two days
Judge Kimball of the Police Court over.
ruled the motions for a new trial and the
arrest OF judgment this afternoon in the
case of Robert N. Harper. recently con.
| victed for the violation of the pure food
and drugs act in the mislabeling and sell.
ing of a mislabeled headache compound
The motion for the new trial consisted OF
a number of exceptions noted during the
course of the trial. but which were grad
ual.y reduced to two points, the admission
without corroboration of the testimony OF
DR.. Glazebrook. who testified to treating
a patient said to have been addicted to
the use Of the compound, without correb-
orative evidence, and the alleged incon-
sistency Of the judicial charge delivered tc
the jury and the first prayer granted to
the prosecution.
Because of disagreement between coun.
eel upon one or two points in the bill OF
exceptions the sentencing Of the de-
PENDANT was postponed until next week
the day to be agreed upon by counsel after
the disputed questions are settled.
for new trial and arrest Of judgment
were resumed at IL o'clock this morning
before Judge Kirnball Of the United
States branch OF the Police Court. The
defendant appeared in court. accompanied
by his counsel. Messrs. Tucker. Minor
eminent were represented by United
States Attorney Baker and Assistant
United States Attorney Proctor.
At the opening of today's arguments
d. -
he discontinued at the close Of court
yesterday. Mr.. Proctor again took UP
the Glazebrook testimony and hearsay
evidence. He quoted numerous author1.
ties. and reiterated the statement Of the
fallacy of the defense's theory that it
was necessary for corroborative evidence
under the Circumstances stated in this
case.
Mr.. Bakers Argument.
Mr.. Baker followed the assistant attor-
ney and took up the matter Of expert tes-
timony and hearsay evidence. Mr.. Baker
cited a number Of authorities, severa. of
which were cases before the local Court
Of Appeals. The argument lasted for
some time, and was upon the same gen.
eral lines as previous arguments for the
government.
The additional important contention of
the defense. that the judge in instructing
the jury failed to charge in conformity
with the first prayer granted to the prose-
cution. was then taken up.
Mr.. Bakers argument was Of short
duration. and consisted Of reviewing por-
tons of the testimony. an analysis of
the prayer in question and the objection
able parts Of the charge. The prayer
objected to referred to the label Of the
''brane fude'' and brain food
Mr.. Baker assailed the contention Of
the defense by showing that should ply
sicians be prohibited from testifying to
the confidential communications obtained
from patients unless they reveal the
Identity Of the patients, the expert testi-
mony which Is of such vital importance
in many criminal trials and civil actions
would be rendered absolutely void He
asserted that In the present instance
Of the defense to the matter testified to.
Second Point Argued.
In the argument against the second i'm
portant point Of the defense, relative to
the inconsistency between the prayer and
the charge, Mr.. Baker reviewed the
| charge and the several prayers. showing
that the inconsistency spoken Of did not
| exist. and other prayers granted counter.
acted what appeared at first sight to be
solid ground for the argument of the de-
tense.
At the conclusion Of Mr.. Bakers argu.
ment Mr.. Tucker of counsel for the de.
tense argued in rebuttal. and in the main
| reiterated his contentious Of yesterday
Mr.. Tucker also reviewed his objections In
the request for q motion to arrest Judg.
ment. the principal one being that the act
under which the present trial was held
does not repeal the former food and drug
act In existence in the District.
Judges Decision.
I'm denying the motion for a new trial
Judge KimbaH said:
"All of the questions which have arisen
| over this motion are definitely settled ir
my mind. with the exception Of Dr. Glaze.
brooks testimony. Under the circum,
stances and the law as see 1t feel that
l am perfectly justified In everything thii
point with the others. The law as argued
in this case does not. to my mind. neces,
Sarily seal the lips Of physicians to the
giving OF expert testimony as q result OF
| their observations during the course OF
| their practice, especially as the law amply
protects the name Of the patient from
her from being injured by publicity
| therefore can see no reason for granting
the notion
| Following the decision of Judge Kim
ball. Mr.. Baker moved for the passing o.
| sentence. which was Immediately objected
| to by Messrs. Minor and Tucker of the
| defense upon the ground that the bill Of
exceptions had not been fully agreed upor
| between counsel The matter was finally
| adjusted by the courts suggestion tina,
| counsel meet at their earliest convenience
and definitely agree upon the disputed
point, after which they could decide upoI
the day for sentence.
Opening Yesterday Afternoon.
| Following The Stars report yesterda,
afternoon Assistant United States Atter
ney Proctor addressed the court. Mr.
! Proctor denied that the Glazebrook testi
! mony relative to patient who was ad
dtcted to the Harper compound, as it was
| testified to during the trial, was of suct
| character as to be considered testimony
| in chief. but was collateral in every re-
| spect in that 1t tended as a part of q
| physicians personal experience to show
| the ciinchtng reasons why he considered
acetapiiide a poison. He argued that if
view of it's collateral nature ii was en-.
tirely admissible and good testimony.
| Mr.. Proctor also attacked the eonten
| lions OF the defense relative to the tes
| timony of Drs. Rufiin and Adams upor
! the same grounds. He declared that per
sonal experience Is the very best method
professional men have of giving testimony
as experts, and under the circumstance
they have the right to refer to these ex
perienees and to take advantage of the
| the identity OF such patients whom the,
have observed. Mr.. Proctor's argument
was not concluded before the Adjournment
yesterday afternoon.
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