The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-10-13
REVERSED HIMSELF.
Judge Pollock Now Decides Noun
Days Can Regain Papers


| None of the papers or records seized
in the raid of the offices of Don A
MounDay and his wife and the Amer
lean Sugar Manufacturing and Rehn-
ing company, are to be used this week
in the effort of the government to Sc
cure the Indictment of MounDay and
his wife at the hands of a federal
grand jury in Leavenworth That Is
the ruling of Judge John c. Pollock
who ordered the return of the Noun
Day papers if shown to have been
seized without warrant. BY ms rui-
ing, Judge Pollock completely re-
versed himself.
Nearly a month ago attorneys Tor
the MounDays began their hght Tor
the return of the papers which were
seized by the government when post
office inspectors raided the MounDay
offices in the Mulvane building The
papers included records of sales OF
land contracts, correspondence, re-
ceipts and general record OF the puS-
mess of MounDay and his wife VINO
were arrested on a charge of fraudu-
lent use of the mails. There was no
order of the court and no provision
IN the warrant for the arrest of the
defendants which called for the seiz-
ure of this defendants property
After the arrest of MOunDay ana
his wife. records which had been
seized over the protest of the defend
ants and their attorneys. were turned
over to the United States district at
torneys office and with the ald OF the
information which the postothce IN
spectors had secured, a case suff1clent
to warrant the holding of the Noun
Days to the federal grand jury was
presented at Leavenworth. Then pc
gan the fight for the return OF the
MounDay papers.
Judge Reversed Himself.
wichita motion for the
turn of the MounDay papers was pre-
sented to Judge Pollock. He refused
to entertain the MounDay application
and ruled in favor of the government
After losing this hght, the NlounDdy
attorneys prepared second petition
wherein they told the court that they
had found some new authorities and
court decisions affecting the case in
noint SO the federal judge allowed
the reopening of TIE case and per-
r1i++ad both sides to present briefs.
After reviewing these briefs. Judge
Pollock completely reversed his Wich-
tia decision and held that the papers
should be returned to the defendants
forthwith unless they had been seized
under a warrant. and further ruled that
none of the information gained through
the results of the raid could be used
nv the government in presenting its
case to the grand jury in Leavenworth
this week D. r. Hite. the ingenious
MoundDay lawyer, prepared the petit
ton for the defendants and raised
dozen constitutional questions in favor
of the return of the papers. Appar-
entity the federal court held with him
in his stand on constitutional issues
The decision is based mainly on Art-
Giles and of the constitution. Aru-
Gle four provides;
THE right of the people to be secure
in their persons, houses, papers and
and seizures shall not be violated and
no warrants shall be issued but upon
probable cause supported by oath and
a affirmation and particularly describing
the place to be searched and the per-
sons or things to be seized.
There was no warrant for the seizure
Of the MounDay property and Judge
Pollock holds that the spirit and pro-
visions of article four of the constitu-
ton was violated by the action of the
postoffice inspectors
May Affect Result of Case.
Whether the ruling of the federal
court as affecting the return of the
MounDay papers may affect the final
result of the case. is at present mat |
ter of considerable speculation.
The Leavenworth grand jury will |
this week be asked to return true bills !
against both MounDay and his wife. |
charging them with fraudulent use of |
forced to rely entirely on the evidence |
secured in the raid of the MounDay Of |
fees its cases would be checked by |
the Pollock ruling.
However, it is asserted that much |
new evidence has developed since the |
arrest of the two defendants and that |
a case Will be presented to the grand |
jury without the aid of any of the pa |
pers which the court has ordered re- |
turned. Yet, it is claimed. even the |
new evidence may not be admissible if |
it can be shown to the court that it |
was secured through information con- |
tanned in the papers which the postal |
inspectors turned over to United States |
District Attorney Robertson. This |
question will probably pave the way |
for a big legal row in the final hear
ing before the federal court. if the !
grand jury should this week report a |
bill against the MOunDays.
Neither District Attorney Robertson |
nor d. r. Hite. chief counsel for the |
defendants, are in Topeka today. Rob |
ertson is attending the October session |
of the federal court in Leavenworth |
and before the conclusion of the term
will present his MounDay evidence to |
the grand jury and ask for the return |
of Indictment against both of the |
defendants