The sun. [volume] (New York [N.Y.]) 1833-1916, 1916-03-15
May FREE OSBORNE
OF PERJURY CHARGE
Indictment May Be Dismissed
TO.day-OutcOme Rests
on a Comma.
DIR. DIEDLING A TARGET
His Authority to Investigate
Prison Observation-Disclosures
Into His Past.

WHITE PLAINS, n. Y. March IT,
Thomas Mott Osborne may walk out to-
morrow from the courtroom where for
two days he has been on trial for per-
jury. freed Of the charge. the first Of
the two indictments against him dis
missed. The decision rests with JUS
tice Tompkins who said he was In
cllned 10 believe Mr.. Osborne technically
not guilty Of perjury.
Tho entire question az issue which
Justice Toinpkins has to decide Is
whether the investigation made at Sing
Sing on October 8, 1915. by Or. Rudolph
Diedling, a member OF the Prison Com
mission. had any standing In law and
whether Dr. Dedling had a right to ad-
was at this investigation that Mr.. o..
borne is alleged to have perjured him.
self.
The decision. and so perhaps the Ques-
ton Of whether Mr. Osborne shall be freed
without even having to enter a defence
or shall spend ten years In State prison.
Tompkins places upon a single comma.
That comma Is In section ~ OF the
prison law. which regulates the Prison
Commission. The nearest Justice Tomp-
kins came to forecastinE his decision was
when he said. during argument by A.
sistant District Attorney Fallon and
George Gordon Battle. Mr.. Osborne's
counsel:
"It seems to mo under the statute that
tad 1sx.tA her
Commission cannot make an investiga-
tion OF prison. swear witnesses and
| take testimony under oath without the
| authorization Of the commission. The
power to inspect and investigate Ia given
TO the commission and not 10 an indi.
vidual"
Diedling HAD No Authority.
DR.. D,ediing had no authorization
from the commission neither he nor
tn. State has alleged that he had II and
| there has been no testimony AZ the trial
| or elsewhere TO show that ne had. Con.
seauently II he had no authorization
and authorization is required. his whole
proceeding hasno standing and no mat
ter what Mr.. Osborne might have testi-
fed before him Mr.. Osborne could not
| be charged with perjury because the
oath DR. Died!!ng administered was not
! binding That .s the inference to be
drawn and that IL Mr.. Battles conten.
ton.
The states forces were almost speech
less ut Justice Tompktns's evident In
! tent,on to consider seriously Mr. Bat
ties motion to dismiss the charge. the
! motion that the defence always makes
| and that the Judge almost invariably
rejects. Mr.. Fa,lon made a strenuous
! effort to impress upon the court that
| his was the proper construction OF the
| law and that the indictment he had
| drawn should not be dismissed without
even a defence having been entered. II
was In so doing that lie pointed out the
comma.
''Why. We require the services Of u
schoolnlaster. not a lawyer. here. MT
Fallon." said Justice Tompkins.
! Then Mr.. Fa,lon remarked that Justice
! Morschauser already had rejected the
same or "A similar motion. though OF
course before Testimony had been taken.
! THE responsibility rests in the court
here. now" Justice Tompkins remarked.
Though OF course I'll consider Judge
Morschauser's decision"
| Comfort for The state.
| Tho State. however. found comfort in
| one thing that Justice Tompkins said In
the course OF the argument
II think there is enough evidence in
this case on the question of knowledge
Of this defendant to have II submitted to
the jury"
This referred. however. to Mr.. Battles
second argument for dismissal. that the
state had failed to show that Mr. Os-
borne attempted wilfully to deceive Dr.
DledlinR. rather than to the basic con-
/ tentiun that II WAS impossible for any
body to commit perjury before DR. Died
ling because his inquiry had no legal
| status.
The section ~ the Penal Law. sec.
ton ~. IN which occurs the questioned
! comma n as follows
The institutions subject 20 the visi.
tation of said commission the Prison
! Commission. of which Dr. Diedling ID
a IneInber) may he visited and Inspected
by 1t or by any member thereof or by
| its secretary, when authorized.
Any member or the secretary Of such
commission. when authorized.
shall have full access to the grounds
buildings. books and papers relating ia
such institution. and may require from
the officers and persons In charge any
. attenuation"
The section then goes on to say such
commission or any member thereof may
take proof and hear testimony relating
TO any matter before II. or before such
member. upon any such visit or inspec.
ton"
The defence contends that the section
means that member or secretary mus,
be authorized 10y the commission to In.
vestisate a prison. The State holds tina,
the comma after, "by Its secretary
means that the secretary only, not a
member. must he So authorized by the
commission.
| Under the first construction DR. Died.
ling. not being authorized. had no right
to take Testimony. Under the second
Or. Diedlng. being "A member and no,
the secretary. needed no authorization
and could take testimony. or this the.
ory Judge Tompklns had this to say &c
Mr., Fallon:
Then your proposition is that any one
of the seven Prison Commissioners car
of his own accord go ut any time &c
any prison for no cause. and take 'testi
mony?"
"H IT," said Mr. Falon,
Dr. Di~dlinE On the stand.
Surprised az the State undoubtedly y
was at the turn in events brought or
hy Justice Tompkinss consideration OF
MIR. Battles motion and his evident In.
c,!nat.on to entertain seriously the idea
that Dr. Dledling was nothing hut a
meddlcr at Sing Sing, the cross examlna.
lion ~ the doctor himself must have
been II surprise also. He left the stand