New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1915-08-26
Substitute Judge Clinches
Appeal of Freeman,
HaWthOrne'S Mate.
"CHANGE IN TRIAL
TRIBUNAL ILLEGAL"
U. S. Court of Appeals Ends
Three-Year Fight-MOrtOn
Went to Prison.

A new trial was granted yesterday
to Albert Freeman. the mining pro-
n.oter The United States Circuit Court
of Appeals held that "the continuous
presence Of the same judge and jury
is equally essential throughout n
trial"
Freeman, with Julian Hawthorne, the
author, and DR.. William J. Morton, a
nerve specialist, was convicted in
March, 1918, Of using the mails to de-
fraud while promoting the Hawthorne
Mining Company. He was sentenced to
five years, but released in $4,000
bond, the largest ever furnished in
this district. Hawthorne and Nor
ton, who each went to prison, did not
ask for a new trial.
Freeman's fight for liberty has been
going on for almost three years. His
trial was begun on November 25, 1912,
and after Judge Hough had heard the
government witnesses he became i'll
by Judge Mayer, who sentenced the
three men.
On this point the Court of Appeals,
consisting of United States Judges
Rogers, who wrote the decision, La
combe and Ward, said:
"In criminal case, trial by jury
means trial by a tribunal consisting
of one judge and twelve jurors, all OF
L al fnAp b.
ginning to end. II is not possible for
the government or the accused. or
for both, to consent to a substitution
of either one judge for another or
one juror for another"
This disposes of the recent decision
of the United States Supreme Court,
which set aside the action of Judge
Mayer, who, in May, 1914, granted
Freeman new trial.
at is not questioned" continues the
decision, that it is the duty of trial
Judge to be present during all the
stages of a criminal trial. In this case
judge was present at all stages OF
the trial, but the judge who thus at
tended was not the same throughout
the trial. Can one judge hear the wit
nesses for the state and another, by
consent, hear those for the defence
And can a judge who has not seen and
heard all the witnesses seen and heard
by the jury charge the jury and re-
ceive the verdict and impose sentence
an this case there were LOG wit
nesses who testified for the govern
ment, and the substituted judge knew
nothing Of them except as he read
their testimony in the minutes. A
trial Judge should have all the evi>
dence that is before the jury.
From the personal appearance or
witnesses upon the stand the jury OBJ
tanned, and the judge did not, what
Professor Wigmore calls the elusive
and uncomfortable evidence OF
witness The demeanor of a witness
on the stand may be as important as
any other evidence in the case"
While the trial OF Freeman. Haw-
thorne and Morton, who, with josiah
Quincy, exMayor Of Boston,, were
charged with misusing the mails, was
under way, counsel for the defence
and the District Attorney entered into
a stipulation that Judge Mayer take
Judge Hough's place on the oencn'
Despite this agreement, the suDstitu-
ton of judges was the main point
made by Freeman's counsel, wilson
B. Brice, in his writ Of error:
The Jury which convicted the three
men was out twenty-seven hours. and
soon after the sentences were pro-
nounced Thomas w. Proctor, then
Freeman's attorney. applied for an ar
rest of judgment.
When the plea for a new trial was
made to Judge Mayer, it was alleged
that Michael Kehoe, one OF the jurors
was disqualified because he had pre-
viously investigated the Hawthorne
company.