The Birmingham age-herald., 1909-12-30
Martin LitHetan Will Attack Judge Hough's Decision
 Against New Trial
LAST PLAN IS ID APPLY
 FOR 4 WRIT OF ERROR
Judge Houah In Refusing to Grant New Trial to Morse Pays No Att tention to Charges Against
 the Jurors.

New York, December 29.-Only a tech nicality now stands between Charles w. Morse. banker and one-time ice king, and the 15-year sentence in the federal prison at Atlanta Judge Hough in the United States circuit court today de- nied his motion for new trial but close upon the heels of the decision Martin w. Littleton, his counsel, announced that one moro stand would be taken. Tomor- row he will move in the circuit court for writ of error on Judge Hough's de- cision of today If this is denied, Morse will begin the new year serving his sen- tence for violation of the national bank ing laws the supreme court of the Unit ed States having previously refused to interfere in the case.
 MT. Littleton's recent application for a new trial for Morse was made on the ground that the jury was improperly guarded and that some of the jurors drank to excess during the trial. With respect to this charge the court holds that the fact that the jurymen were in the custody of secret service men in- stead of regular deputy marshals was well known to both counsel and jurors when the trial began. The court also notes that more than a year had elapsed
 
 fenced, and that the judgment had been affirmed by the United States circuit court of appeals and writ of certiorari had been denied by the United States supreme court.
 So far as the records of these affi- davits show" says Judge Hough's mem orandum, there was nothing concealed about the appointment of these men and it has not been urged that merely be-
 
 marshals staff they were ineligible for selection"
 As to the drinking charges, Judge Hough says:
 .'Legislation must advance a good deal before a prisoner may claim to be en- titled to jury of teetotalers In New York at all events"
 Judge Hough points out that it was by direction of the court that the jurors be permitted to lead their usual lives' and that the affdavits submitted by Morse's counsel showed merely that dur ing the entire trial only 20 bottles of liquor and some individual drinks had |, been consumed by the jury.
 And it is not pretended that anyone was at all intoxicated" adds the court .All parties agreed the memorandum continues that no liquor was served to the jury after the case had been given to them.
 'The same juror who has deposed to the defendants as to the drinking hab- It's of the jury" says the court, 'is by the defendant alleged to have been him self so sodden with drink as to be in- capable of clear, cool and undisturbed judgment"
 As to the charges that the jurors were permitted te read newspapers containing hostile" accounts of the trial Judge Hough said
 This case was very dull. It took q long time to exhibit necessary prelim- mary facts. The newspaper accounts were incomplete and incorrect But there Is no evidence that they were hostile or biased. as even probably to affect the minds of men quite able to perceive their incompleteness, and incorrectness. Un- less all reading of daily journals by jur- ors Is unlawful, this point requires no further consideration"
 Mrs. Morse, who has remained con- stantly loyal to her husband throughout his fight for freedom, is greatly upset by the turn of affairs today. If he must serve his sentence 1t is said that she probably will accompany him south. MT. Littleton's motion for writ of error on Judge Houghs decision however acts as q temporary stay of execution