New-York tribune., 1910-01-23
HEINZE WINS AGAIN
QUASH INDICTMENT.
Copper Man, HozoeUer, by No
Means out of the Woods.

r Augustus Heinze won another victory
in the Criminal Branch of the United States
Circuit Court yesterday, when Judge
Hough dismissed the Indictment against
him charging misapplication of funds of
the Mercantile, National Bank The indict-
ment charging conspiracy to impede JUS
tice, in that alleged efforts were made to
prevent the government getting the books
of the United Copper Company, will be at
tackled tomorrow by John B. Stanchfield,
who succeeded in having the first thrown
out
But success yesterday, and If success
should follow the battle tomorrow, will not
take Heinze out of the woods One count
remains in an old indictment which when
found contained sixteen. This charges the
loan of $500 900 by Mr.. Heinze to himself
without the giving of security There is
another, found away back in December
1907. charging overcertifcation of checks of
Otto Heinze & Co. and misapplication Of
the funds of the bank.
United States Attorney Wise will not de-
pend upon these old indictments, but will
forthwith go before the federal grand jury
and seek reindictment on misapplication of
funds. but will be careful not to have a
layman, John p. FernsIer. conduct the pro-
ceedings. Judge Hough decided in favor Of
Heinze because of Fernslers presence as a
prosecutor In the grand jury room. Mr..
Wise is going to get the results this time
by calling Fernser as a witness.
Judge Hough went into detail regarding
his objection to Fernsler's presence in the
jury room Mr.. Wise had argued that under
an act of Congress in 1906 Mr.. Fernsler was
appointed to assist him, and received all
the powers of a prosecuting officer of the
To-, arfr, Of ,cIar ts.
pert accountant and examined witnesses
called in the case. Judge Hough said:
1.-The necessary result of the govern
ment's position is that it is now within
the power of the Attorney General to ap-
point a class of special assistants to United
States attorneys, who may be accountants,
doctors, chemists, engineers, and, having
severally authorized them to conduct grand
jury proceedings, may put them in charge
of such cases as would be benefited by spe-
cial technical education"
Judge Hough quoted authorities to bear
out his disagreement with Mr.. Wise in the
foregoing contention and in others brought
out in the United States Attorneys brief
In conclusion he said
Instances might be multiplied wherein a
violation of the law cannot be seen to have
produced any present injury to any one
That is a good reason for refusal to pun
ish or refusal to prosecute, but it is no
reason for Justifying illegality. An excused
or pardoned ilegaity is frequently unim-
portant, but justified illegality, however
trivial in itself. is of the highest impor-
tance.
A statement given out by Levy, Ro-
senthal & Heermance, coming from Mr..
Heinze in which it was said that as much
as he appreciated the decision in his favor
he regretted that the court did not go into
the other grounds for dismissal, among
them the right of the United States Attor-
ney to withhold from the grand jury facts
and documents in his possession directly
contrary TO the allegations set forth in the
Indictment. Instances are cited where the
charges in the indictment did not show
payments on loans or the security back of
them, which. Mr.. Heinze through the coun-
sci declares, would show that the bank
does not stand to lose penny.
Martin W. Littieton counsel for Charles
". Morse, said yesterday that he expected
to apply within a month to the federal
court at Atlanta for a writ of habeas cor
pus on behalf OF Morse, and in this appli-
cation the jury that tried Morse again will
be attacked. Mr.. Littleton said that his
application would embrace the following
questions:
Whether the court that tried Morse com
posed of the Judge and eleven jurors, was
ant was afforded a trial by an impartial