Evening star., 1923-09-18
FILE STATE APPEAL
IN THEATER CRASH
Error Charged in Decision
Sustaining Demurrer of
Knickerbocker Defendants.

United states Attorney Gordon and
Assistant United States Attorney
O'Leary have filed in the District Court
of Appeals brief in support of their
appeal from the decision of Justice
Siddons of the District Supreme Court
sustaining demurrers to the Indictment
In the Knickerbocker Theater disaster
case.
In forty eight printed pages the gov
eminent prosecutors attempt TO show
that Justice Sddons erred when he
declared the indictment invalid which
charged manslaughter against Regi-
nald W. Geare. the architect of the
building; John H. Ford, the fabricator
of the iron work; Julian r. Downman,
assistant to the District building in
spectoT; Richard G. Fletcher. the con-
tractor for the tile and cement work,
and Donald NJ. Wallace, foreman for
the general contractor.
The lower court threw out the in
dictment on the objection of counsel
for the defense that il failed to set
forth facts constituting criminal neg
ligence. The prosecutors take issue
with the decision Of the court on that
point and also combat the other five
objections made ,by the defendants.
Misjoinder of defendants. failure to
set forth a contract or law imposing
duty on the defendants. misjoinder
OF offenses. failure TO show act or
omission of tie defendants as the
proXimate cause of death and the
statute of limitations. the building
having been completed more than
three years before the collapse of the
roof. |.
Claim Court I'm Error. !
THE error into which thes lower,
court fell" says the brief of the pres.
ecution. "resRlted in part FROM con-
sideration by such court of a part
only of the indictment because the
indictment did not set forth a single
fact of negligence to show that the,
defendants failed and neglected TO.
do the things they had undertaken
To do. Yet the very gist and heart
of the indictment is that. having un-'
dertaken to do certain things the de-
fendants did such things, but did
them in grossly negligent manner.
The charge in the Indictment is
that these defendants wrongfully
caused the death of Mary +. Atkinson
--one of the victims of the disaster.
How? By creating dangerous con-
dition and. with knowledge of the
same, failing to warn her and suffer
ing her to meet her death as a re-
suit thereof"
MansIaughter Grounds.
The prosecutors claim that the in
dfctment does not contain merely
conclusions of law. but it's averments
constitute a sufficient charge of the
crime of manslauEhter. They assert
that ii charges improper and made
quate plans and designs for con-
struction. inherent faults and weak
nesses, faulty construction. insult
cient strength and placing materials.
insufficient provision for the support
of the weight of the roof and roof
slab upon the walls and structural
steel and iron. Inadequate superin-
tending, inadequate inspection and
other ccnditiofs- resulting from the
joint failures and neglects of the de-
PENDANTS. ~ .,
The government claims the indict-
ment properly charges criminal negli-
gence in creating a dangerous con-
dition by erecting a theater liable to
collapse aud faH; in not warning the
public of the dangerous condition
created by tht defendants and by
suffering the public unwarned to be
in the tbaateE p its dangerous con-
dition.
Failure 10 set forth contract or
duty imposed on the DEFENDANTS does
not vitiate the indictment, the prose-
cutors state because the defendants
are charged not with merely not DONG
something they had duty TO do. but the
doing of something IN a grossly negligent
manner. The prosecutors point out
that one is under no duty to drive
his automobile on public highway,
but if he does then the law imposes
a duty to refrain from negligence
and requires him to drive in care
ful and prudent manner.
The lawyers for the government
declare there has been no misjoinder
either of parties or offenses, and as
negligence is the only cause alleged,
IL must be the proximate cause
In reference to the bar Of the stat
ute of limitations, it is claimed by the
prosecution that IL cannot be raised
on demurrer. and even if IL could, it
is not we'll taken. because the statute
does not commence to run until the
criminal cause of action is complete.
The crime being manslaughter there
could be no prosecution until death
occurred. The disaster occurred jan
uary rs. 1922, and the indictment was
reported by the grand jury April 5
following.
The government submits that the
Indictment is sufficient. that the de-
murrers should have been overruled,
that the court erred in discharging
the detendants. A reversal of that
decision and an order requiring the
five defendants to go to trial is asked
OF the appellate court