Omaha daily bee., 1910-01-23
Expert Accountant Assisted the Prose
cutor in Grand Jury Room.
HOPE FOR MOE
NEW
Attorney for Ice King Says He Can
Show Similar Cause.
WILL GET BACK INTO COURT
Writ of Habeas Corpus VIII BE
Asked at Atlanta to Get JudE-
ment on Certain Alleged
Facts.

NEW YORK, Jan PA decision by
Judge Hough, in the United States court
today, quashing the Indictment against f.
Augustus Henze, financier and promoter,
has given renewed hope to the friends and
counsel of Tharles w. Morse the banker,
now serving a term of fifteen years in the
federal prison at Atlanta, Ga.
Martin w. Littleton, Morses lawyer, said
tonight that the Heinze decision of today
may apply equally to the case OF Morse
and that II he could establish similar facts
he would move that no valid indictment
was found against his client.
Heinze was indicted on October IL, 1909,
for violation Of the national banking law
In quashing the indictment Judge Hough
said:
The common law is that a grand jury,
while celebrating, shall listen to witnesses
who give testimony and-to no one else,
except the authorized law officials of the
commonwealth. When this indictment was
Under consideration in the grand jury
room, John F. Fernsler took part In the
proceedings to the extent OF asking some
technical questions of other expert account
ants, and throughout suggested the method
of examining expert witnesses thought to
be allied with the defendant
Mr.. Fernsler is an expert accountant,
not a lawyer, and was not retained by the
prosecution as counsel
This may be a Good move" continues
the court, but II has not been adopted by
law. 1t has never been argued before that
counsel is entitled to have at his elbow in
grand jury room an expert assistant"
Morse VIII Renew Fight.
After Mr. Llttleton, counsel for Morse,
had read Judge Hough's decision, he Issued
a statement in part as follows:
1T has been brought to my attention that
the method by which the indictments
(against MorseJ were procured included the
service before the grand jury OF a non
professional officer, designated by the fed
eral government. AS / understood it, the
court has determined that for similar prac-
tices, an indictment against Mr. Heinze
shall be quashed. If can establish similar
facts in the case of my client, 1 shall move
that no valid Indictment was found against
him.
But whether 1 can establish such facts
or not, expect within thirty days to apply
to the federal court at Atlanta for a writ
of habeas corpus which will enable me to
present to the court these questions:
''Flrst-As to whether the court was a
SOhstAIutondl COURT Wilnin the meaning OF
the constitution. 1t being conceded that one
Of the jurors was demented at the time Of
the trial.
Second-As to whether the defendant was
afforded a trial by an impartial jury, when
the jury was overshadowed and surrounded
by the private paid detectives Of the prose-
cution.
iThlrd-As to whether or not a sentence
Of five years in excess of the statutory
term is void sentence upon which the de-
fendant can he confined.
More Indictments Against HeInze.
There are still two indictments pending
agaiI st Henze, one of which charges over
certfication OF the checks of Otto Heinze
& Co., and the other misappication of the
funds of the Mercantile National bank for
the benefit of Heinze himself
According to Attorney Smith, who has
been assisting the United States district at
torney In the prosecution, the quashing of
the third indictment today will merely re-
suit in the delay incident to obtaining
new indictment under the conditions i'm
posed by the court. He believes he has
sufficient evidence to do so without the
assistance of a lay expert.