Evening star., 1924-06-26
OPPOSES, ,ACQU|TTAL
IN WAR FRAUD CASE.
U. S. Attorney Declares Lum-
Der ConspiraCies Related
Parts of One Main Plot.
DECISION TO BE DELAYED
Judge Will Rule Monday on De-
fense Plea for Instructed
Verdict.
DECISION TO BE DELAYED

United States Attorney Peyton
Gordon today opposed before Justice
Bailey in Criminal Division the ac-
quittal of the six men charged with
conspiracy in connection with the
sale OF the surplus lumber from Army
cantonments and defended the case
made by the prosecution as supporting
the allegations of the Indictment. There
is no duplicity of conspiracies shown
by the evidence, he contended, but
only proof of continuous conspiracy
to defraud the United States. He
asked the court to overrule the mo-
tons for instructed verdicts OF ac-
quittal.
What are claimed by counsel for
the defense as separate conspiracies,
Mai Gordon contended. are but
means by which the one conspiracy
was effected. Such means, he claim
ed. even 4 set out, are to be consid-
cred as bill of particulars rather
than an essential part OF the descrip-
tion of the offense. The Indictment,
as Maj. Gordon viewed it, has two
main divisions. In the first 1t charges
a conspiracy to obtain a contract
IL
ipS & stephens were to obtain prof
its in addition to the commissions
allowed under the contract. AS a
second division, it charges that they
conspired to obtain the release from
the government in collusion with GER
tain officials of lumber needed by the
government to be sold as surplus.
VIII Decide by Monday.
Special Assistant United States At
torney General John J. Parker of
North Carolina will conclude the
argument for the prosecution. and
Justice Bailey is expected to take the
matter under advisement until next
Monday.
D. J. Kenehck. former chief justice
OF the supreme court of New York,
appearing for Frank T. Sullivan,
lumberman of Buffalo, N Y, took the
position that there is no substantial
evidence to warrant the finding that
Sullivan participated in any con-
Spiracy to defraud the government.
He pointed out that the only thing
that could be charged against Suill-
van was in relation to the contract
Of sale which Philips and Stephens
had with the government, There was
no proof, he said, that Sullivan knew
anything about any other transaction
or negotiation before or after the
signing of the contract.
Says Conspiracy Unproven.
Judge Kenefick contended that the
contract was clearly sales agree
ment obligating Philips & Stephens
TO an absolute purchase of the sur
plus lumber and that Sullivan dealing
with them with such knowledge can
not be charged with any criminality.
He further declared there has been a
complete failure on the part of the
government to prove the conspiracy
charged in the Indictment because the
indictment shows by the first overt
act that the conspiracy, il any. was
in existence prior to January 25, 1919.
The proof clearly demonstrates he
said, that no one described in the
Indictment had anything to do with
John l. Philips prior to that date ex-
Cept John Stephens and no iota of
proof had been offered to show that
Stephens engaged in any conspiracy
or committed any act to which the
With Stephens out of the picture, the
lawyer asserted. the conspiracy
charged in the indictment failed. -.
Attorney Conrad II. Syme, repre-
senting Charles Philips, jr., of Allan
ia. Ga, closed the argument on be-
half of the defendants on the motion
for an instructed verdict. He declared
his client was not acquainted with
any of the other defendants except
ing his brother, John l.. Philips. and
that his knowledge of the circum-
stances surrounding the contract was
confined to the fact that Philips a.
Stephens had the right to sell the
lumber to the E,itZen-Touart Company,
of which firm he was a member.
Philips Is Defended.
Mr.. Syme urged the fatal variance
between the allegation of the indict-
ment and the proof offered by the
prosecution, and insisted that II
there was proof of any conspiracy 1t
was of two separate and distinct ones
which were attempted to be Joined In
A single count in violation of law.
The only thing that could be com
planned of, said Mr. Syme,. was the
fact that John l. Philips had made
money out of the resales of the lum-
ber after it had been purchased at
its market value in open market by
persons who had given values which
we're acceptable to the War Depart
ment There was no evidence, ne
contended. of any arrangement for
secret profits between John l.. Philips
and any of the purchasers, and that
after Philips had secured purchasers
and had accounted to the government
for the price of the lumber and to
his partner, John stephens, for his
share Of the commission he had
legal right to assist such purchasers
in the resale and to make such pront
as he might thereon since he as
sumed not only the risk of the orig
inaI contract, but also the risk of
he