The New York herald., 1922-03-25
Indictment introduced in
Move to Overturn Con-
yictiOn.
LILLY ALSO MARKED OFF
Rand Calls Tt a Shame to
Parade Bill Which Was
Not Returned.

The Almirall Grand Jury started to
indict George Gordon Battle. leader
of the New York bar, and one of his
associates, Joseph Lilly, but changed
its mind and struck their names from
the Indictment in it's final form, it was
disclosed yesterday in record of ar
gument heard by the Appellate Di-
vision of the Supreme Court on Thurs
day.
In form of indictment prepared for
the Almirall jury in November. 1890,
the names of Battle and Lilly ap-
peared, as well as those of Edwin p.
Kilroe, Assistant District Attorney.
and Louis Z. Swarts, lawyer.
When the document was handed to
the late Barlow S. Weeks, Justice OF
the Supreme Court, Battle and Lilly
had been eliminated with stroke of a
pen through their names. To show
that this erasure was official the fore
man of the jury, Raymond f. Almirail,
penned his initials on the margin.
Concerns Bourasse Case.
The charge against Kilroe and Swarts
was that they had compounded a fell
ony in connection with the dropping of
bigamy charges against Napoleon A.
Bourasse, a stock broker. They were
found guilty and fined $500 each by jus
tice Weeks in April last year. They
appealed and thus the case has now
reached the Appellate Division.
No accusation whatever is made
against Mr.. Battle and Mr.. Lilly before
the Appellate Division, or was ever
made in any official way by the Almi-
rail- Grand Jury. The fact that their
names and the erasure appear on the
Indictment was laid before the Appel
late Division by Nelson Olcott. counsel
for Kiroe. and Siegfried +. Hartman.
counsel for Swarts, in trying to prove
that Justice Weeks handled the Bou-
rasse case improperly and deprived the
defendants of an opportunity for a fair
trial.
The lawyers contended that Battle
and Lilly were innocent of any wrong
doing and that Justice Weeks should
mover have accepted as an indictment a
paper bearing their names, even though
they had been officially erased, and
allowed 1t to become a public record.
They said Battle and Lilly were right
fully cut out of the indictment. as they
contend Kilroe and Swarts should have
been.
William Rand, who az Special Deputy
Attorney-General. advised the Almirall
Grand Jury and was the States attor-
ney In the trial of Kiroe and Swarts.
protested warmly when the indictment
was submitted to the Appellate d.
vision. He said:
1T is shame that this indictment
should be paraded here to show that
the names of two reputable members
of the bar were included in the form
of indictment. though they were not
included in the indictment returned"
On the envelope containing the in
dictment Justice Weeks had written,
DO not show to jury" This was done
Mr.. Rand said. In order that the names
of innocent men might not be dragged
into the case.
Battle First Adviser.
When the Almirall Grand Jury, late
In 1919. began its long pursuit OF the
''overshadowing crime" Gov Smith
named George Gordon Battle as its
adviser. But as Mr. Aimirall objected
on the ground that Mr.. Battle was too
friendly with District Attorney Swami,
Mr.. Battle politely withdrew and Mr.
Rand became the jury's counsellor
The jury never quite got hold of the
'overshadowing crime" but it did in
diet several persons. and among them
were Kilroe and Swarts. The charges
grew out OF a suit started in October,
1919. by Mrs. Helene Montrose Bourasse
10 have her marriage annuled on the
ground that Bourasse had another wife
living. Mrs. Bourasse began both civil
and criminal proceedings. Kilroe, as
Assistant District Attorney. had charge
Of the criminal case. Mrs. Bourasse's s
attorney In the civil suit was Swarts
and Bourasse's attorney was Mr..
Battle.
1t was alleged In the indictment that
n payment of $4,000 to Mrs. Bourasse
by her husband was made contingent
with the consent OF Kilroe and Swarts
on the dropping OF the criminal charge.
Magistrate Mancusco permitted the
criminal complaint to be withdrawn in
November. 1919. after Mr.. Lilly and
had told the Magistrate of the settle-
lnent OF the civil suit by payment OF
$4,000.
The Almirall Jury accused Kilroe.
Swarts and Bourasse of conspiracy.
Ex-Judge w. NJ. X Oicott appeared for
Kilroe and Swarts at the trial and said /:
prominent members OF the legal pro-
fession were named In connection with
the case. but the Grand Jury followed
the wiser course Of failing TO indict In
regard 10 them while Kilroe and Swarts
were put UP as scapegoats."
"Never Tbrentencd.n
Mcssrs Battle and Lilly testified for
Kilroe and Swarts. Mr.. Battle said
last night:
please make II clear that neither Mr.
Lilly nor myself was ever indicted or
threatened with Indictment. do not
know who drew the form OF Indictment
The money paid to Mrs. Bourasse was II.
settlement Of her civil claim and not in
any sense IN settlement OF the criminal
proceeding. Itwas done with full knowl-
edge and consent OF the courts and the
District Attorney"
Nelson Olcott said:
"I 90 not believe nor Is II asserted
swrt Mr.. Battle and Mr.. Lilly were guilty
OF any offense but only that there was
testimony given at the trial on which
that construction might be put and that
the argument was that ii was unfair to
visit tho alleged, and I believed wrong
ruby alleged misconduct OF Battle and
Lilly on the defendants on trial"
Mr.. Rand was asked who caused the
names Of Battle and Lilly 20 be struck
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