Evening star., 1920-11-23
HORN|NG WANTS.
HIS CASE REHEARD
Pawnbroker's Attorney Will
Ask Supreme Court to
Reconsider Decision.

Henry E. Davis attorney for George
D. Horning. will ask a rehearing in
the United States Supreme Court De-
cember on the decision handed down
yesterday upholdins the District Court
of Appeals affirmation of a conviction
of MIR. Horning under the pawnbrok-
er's act Of 1918
In a statement today Mr., Horning
said he has SO changed his method OF
business as to omit the redemption OF
pledges In any manner In the DISTRICT.
This. he stated. was the feature prin-
epally dwelt upon as "transacting
business or an essential part thereon
in the District az Columbia" and evil
IDENTIFY, Mr.. Hornln9 believes. was the
ground upon which the courts ruled
against him.
opinion Of Justice Braadeis.
In announcing the dissenting opin-
ion In the case, Mr. Justice Brandeis
held as follows:
ut has long been the established
practice OF the federal courts that
even in criminal cases the presiding
Judge may comment freely on the evil
dence and express his opinion wheth-
er the facts alleged haverbeen true.
Since Sparf vs.. the United states, 1856
U. g.. 81, It is settled that in criminal
cases 1t is the duty of a jury to apply
the law given them by the presiding
judge to the facts which they flnd.
But it is still the rule of the fed
eral courts that the jury in criminal
cases rendered the general verdict on
the law and the facts. And that the
judge is without power to direct a
verdict Of guilty. although no fact is
in dispute. (The United States vs..
Nada
Railway vs.. the United states. 172
Federal, 1sI) What the Judge is for
hidden to do directly he may not due
by indirection. Peterson VS.. the
United States, 213 Federal. S20) The
judge may enlighten the understand
their Judgment, but he may not use
undue influence. He may advise. he
may persuade. but he may not COM
mand or coerce. He does not coerce
when without convincing the judg-
ment he overcomes the will by the
Weight Tsi Of his pn aushortty. us1 ta.s. Hall Va
After quoting the remarks Of the
Judge in the lower court, Mr.. Justice
8randeis continued:
TN my opinion such a charge is a
moral command, and. being yielded
to. substitutes the will OF the judge
for the conviction Of the Jury. The
bids a verdict directed in 30 many
words. foroids such a statement as
above
Refuses to Concur In Finding.
TT il said that il the defendant
suffered any wrong, It was purely
formal, and that the error is of such
Ia character as not to afford since
the act Of February Is, 1918, 4s. 40
Stat, 1181,s basis for reversing the
judgment OF the lower court Wheth-
er q defendant IL found guilty by q
jury or is declared to be 80 by q
Judge IL not, under the federal Con-
stitution. a mere formaiity. Blair va
the United States. 241 Fed, zl7, 230.
1.-THE offense here in question is pun
ishable by imprisonment. Congress
would have been powerfess to pro-
vide for imposing the punishment ex-
cept upon the verdict Of jury. CAL
Ian VS.. Wilson. 127 U. g., $40; Thomp-
son vs. Utah. ITO U. s.. 343. I find
nothing in the act to Indicate that
1t sought to do SO because the pre-
siding Judge usurps the province Of
the Jury, am unable to concur in the
jud6uent pf the court {
| ! The ChiGf :s.Just1ce and Mr.. Justice
Day. concurfed m the foregoing de-
cision. Mr. Justice McReynolds an
nounced his dissent without render
lipE,Rp opinton,
y y . 4 /.