Evening journal., 1913-06-02
FOSTER WILL
SERVE OUT
PRISON TERM
Judge Bradford Rules That
Convicted Mans Appeal
is Irregular
TIME FOR FURTHER
APPEAL HAS EXPIRED

Mshlon B. Foster, who commenced
a four-year term OF Imprisonment in
the Federal prison at Atlanta, Ca,
just six mopths ago. on the charge of
using the mails to defraud. has made
a final and at the same time unsuc-
cessful effort TO obtain his relcasa
from prison He will now have 10
serve his term. and his only resource
is to await the time when he has
served one-thrd of his time and thea
make an application for parole under
the United States law. He must have
lived up to certain requirements In
the meantime. however.
The District Court of Delaware
several days ago received a petition
from Foster in which he asked the
Court to furnish him under seal, etc,
with. all records and proceedings in
his case. for the purpose of suing out
a writ of error. He also petitiOned
the court to furnish the records and
proceedings TO the United States Cir
cult Court of Appeals Of the Third
Circuit at Philadelphia, and TO fur
nish him with an attorney
The petition was sworn to before
Frank Rogers. a notary public in Full
TON county, Nrd
In refusing the petition, Judge
Bradford. OF tho District Court here,
cites rule NJ of the Circuit Court of
Appeals for the Third District, which
provides that the plaintiff in error
shall flc with the clerk OF the court
below with his petition for the writ
CT error his assignments of error, AZ
required under section 997 Of revised
statutes. which shall Sc forth sepa-
rately each error as asserted and in
tended to be urged.
The court continues: IF the petit
hcn in question should be regarded
as z petition for a writ Of error, the
fact that il neither contains nor is
accompanied by any particWH12ation
or assignment Of any matter Of error
is fatal to IT, On the other hand n
the petition cannot he so regarded i
sis simply a petition that certain or
ders and things he made aud done
fo' the purpose Of enabling the pc
titioDer 10 prepare and prosecute a
proper petition Tor a writ Of err
ror -
The court set forth that it was rot
aware Of any authority in that court
n make an order insofar as the pc
titioner seeks to have tho court fur
nsh him under seal. etc. all records
and proceedings in the case.
III he desires copies Z tie record
continues the opinion, they could ht
procured through payment of the law.
ful fees and possibly without sucf
payment on the ground OF being
psuper. but no opinion IS given OF
thu latter point. If be desired 10 sc
quaint himself with the contents o
the record he could have done 50
through his attorney OF record y
With respect TO the request thai
Foster be furnished Wits an attorney
the court states that the petitioner al
ready is represenec by counsel ir
Wllisl r. Cooper. Jr~ who conduct
ed the case and who t1s not at an,
time since been discharged mol
sou-ht TO be ard who since the peti.
toner commenced hi1 sentence has
acted in his behalf to secure an ex'
ecuiive clemency
Secondly" the court states. If the
petition r did not have a lawyer h'
has failed to comply with certain
conditions Of the stati which pro
vides among other things not only
=
statement by the petitioner undel
oath in writing that h. believes tha
he is entitled to redress he seeks b.
such writ of error, but also that tn
statement shall set forth briefly the ma
ture of his alleged cause Of action o
appeal. The petitioner has not com
piled with the requirements He ha
wholly failed to state the nature o
any supposed matter Of error. In M
aspect OF the case can his petition d
sustained"
Under the law Foster had si'
months from the time his term Of i'm
prisonment began in which to Obtain
his release on writ o. error Thi
time expires today and with the dis
position of his petition, ends hi
chances for release along legal chan
nels.