New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1916-02-22
Court, Reserving Decision,
Questions immortality
Indictment.
DEMURRER TOPERJURY
DENIED AT PRESENT
Warden, in Brief, Declares En-
tire Proceedings Illegal
and Improper.

When Justice Morschauser, reserying
his decision on Thomas Mott 0sborne's
demurrer 70 the indictment charging
perjury and his motion TO dismiss that
and the immortality encouragement
charge. adjourned court in Poughkeep-
sic Yesterday, he made il clear that
the issue was much in doubt The one
thing decided was that in the event
Of his deciding against the Osborne
lawyers the Appellate Division might
be called upon to review the case be-
fore any trial could be had.
This Justice Morschauser did when
he emphaticslly told District Attorney
Frederick Z. Weeks and William J.
Fsllon, Assistant District Attorney,
that an appeal from an adverse deci-
sion by him, in the event Of his max
ing one, could be had, counsel for the
state insisting that the law permitted
no such appeal
Previously the court had discussed
the matters in q way that might sug-
gest he was inclined TO dismiss the
MISUNDERSTANDING indictment
ard have the entire matter submitted
TO another grand jury and sustain the
indictment charging perjury, but he
= told his auditors no such inference
should be drawn from his words.
Osborne Not in Court.
Anything l may have said" de-
clared the court, must not be taken
ss indicating that have it in mind 20
dismiss or sustain either or both of
these indictments
Mr.. Osborne was not in court. In
stead he was represented by Hunting
ton ". Merchant, his attorney OF rec
ord. and George Gordon Battle and
Michael J. Tierney Of counsel. To
support tho motion TO dismiss both in
d.ctments rs having been Illegally pro
cured. based upon insufficient and
illegal evidence and secured through
all invasion Of the warden's rights and
the demurrer 70 the mismanagement-
immortality indictment on the ground
that il was improperly drawn in such a
way as 10 make il impossible for the
warden 90 meet the charges against
him and in violation Of the law pro-
yiding that a person accused OF crime
must have the crime against him SCI
forth clearly was printed memorandum
Of 1877 pages.
Reading from il. Dir. Battle, charged
that District Attorney Weeks and his
assistant had so conducted themselves
as 10 unduly. poison and prejudice the
grand jury against the warden. that
they had put rumors and prison
gossip, unworthy of the designation
OF hearsay" before the grand jury as
evidence. In support Of this the
printed memorandum quoted the dis
trict attorney repeatedly asking con-
victs for gossip, rumors and stories.
Testimony covering alleged occur
rences of a decade ago in Auburn and
Syracuse. which counsel urged could IN
10 way be competent in an inquiry IN
Westchester County. was clted' as well
Is what Mr.. Battle declared were sue
cessful attempts 10 make the grand jury
believe its dignity had been assalled by
Mr.. Osborne.
Perjury Charge Attacked.
On the perjury indictment Mr.. Battle
declared that, instead OF being JerJury,
the Warden had told what was the abb
solute truth.
"Mr. Osborne" said nc. twas ham
mered about hi public utterances for
the purpose orr bitterly impressing the
grand jury. 1t was successful he
contended. "The members of the grand
jury were satisfied they had been Of
| Tended, and the indictments were
| found
Suppose" said the court, 81 should
assume that the jurhy was materially
Influenced by improper evidence and
| decided the evidence charging misman-
sgement should be placed before an.
other grand jury, how about the per
jury Indictment"
| both are based upon the same ties
| timony," replied Mr.. Battle. "and you
can no more separate the testimony ir
these two cases as II was presented
than you can separate the drops OF
water In that pitcher on your desk"
Mr.. Fallon contended that the evi
dence was properly presented, that th'
evidence given showed many convict'
70 have testified against the warden
and that evidence declared TO be i'm
! proper was properly introduced 70 tes
| the credibility Of the witness.
"Hearsay and Rumors."
"By digging into hearssy and ru
| mors," said he anent the charge thai
| fshwives' tales were put before thu
| jury a. evidence, "we often lead to The
| truth"
At this point it developed that The
|