Evening star. [volume] (Washington, D.C.) 1854-1972, 1931-10-23
Ex-Smith Co. Heads Counsel
Charges italian Was Past
Legal Limit.
SOME OF 425 ADDITIONAL
CASES MAY BE Affected
Two Alternatives Open to U. S.
Should Grand Jury Be De-
clared Disqualified.

year ago returned 426 indictments, in
Guiding one for embezzlement against G.
Bryan Pitts, former head of the F. H.
Smith Co., depends upon the date Of
Frank Fabrizio's birth in the little tai
ian town of San Sele.
The question of Fabrizio's birth date
has been raised in plea in abatement
OF the Pitts indictment This plea will
be tried in District Supreme Court
Tuesday
Fabrizio sat on the grand jury i'm
paneled in October, 1880, and partici-
pated in the return of the indictments,
including that of Pitts and the one on
which William J. CARMEL and Frank
Mahoney were tried and sentenced to
the penitentiary for life for the murder
OF Louis Bush, bus line operator
The latter cases, having already been
disposed Of, however, may not be af-
fected, depending upon whether the
question Of FabriZio's age is held to be
a ministerial or iurisdictional defect
If the former. the cases could not be
feet to be juri1dictional, however it is
believed those convicted may have a
legal right to a rehearing of their cases.
The District Code provides specifically
that any person under 81 or over So
years Of age shall not be competent to
serve as grand juror.
Holds Juror Was Over SIS.
In attacking the legality of the grand
jury, Dozier De Vane, counsel for Pitts,
commended FabTizio was over IS years
old when he sat on the jury. His con-
tention was based on information he
has received that the naturalized
Italians birth certificate in San Sele
bears the date of February 8, 1865, and
on the further fact that in applying
for naturalization papers Fabrizio said
he was born in or about the year
1865" Il born at any time in 1865, 1t
was pointed out, FabriZio could not have
been legally competent to serve on the
grand jury.
The Government has fled a replica
ton to the plea, asserting that Fabrizio
was born on February s, 1857. It Is
believed this replication was based on
oral statements by Fabrizio. and it is
known the Department of Justice has
cabled to San Sele for definite connrma-
ton of the date.
The defense has also cabled San Sele
for the same information, and both
sides are waiting an answer.
Italy Keeps Strict Record.
Since the year 1885 Italy has kept
strict record of the birth dates of hsr
citizens. The law requires the parents
of a newborn child to register its birth
date at the town hall, with physician
as witness The parents are also re-
quired to register the date with the
church authorities, making double
record from which FabriZio's age should
be readily aScertainable.
If the Government should be advised
Fabrizio was born in 1865. they will
have to elect one of two alternatives.
They may decide to confess error and
admit the invalidity of the Indictment,
or they may call upon the defense to
prove their contention by competent
evidence.
If the birth certificate shows Fabrizio
was born in 1867. the Government will
simply stand on that record.
EmbezzIement Charged.
The indictment against Pitts, which
is in 100 counts. charges him with en-
bezzling more than $1,500,000 Of the
companys funds. If the indictment is
declared invalid, however. the statute
of limitations will have run against 81
of these counts, and his reindictment
can be sought on only SO counts.
The grand jury on which Fabrizio
served returned 426 indictments. OF
which six are still pending. There were
in all 80 convictions, resulting in 219
jail sentences and 81 probation cases.
There we're IS nolle presses and Is
acoujttals.
Fabrizio lives at 1905 H street north
east He is expected to testify Tuesday.
First Indictment in 1929.
The first indictment in the Smith
Co. case was returned May 8, 1923.
/ charging Pitts with perjury in connec-
ton with testimony given in the Ham
ilton Hotel bankruptcy hearing.
A general investigation Of the COM
pany's bond and stock selling activities
had already been started by the De-
partment of Justice, and subsequent de-
velopments took the departments agents
into half a dozen States from which
complaints of fraud had been received.
In December of the year local grand
jury returned a mail-fraud Indictment,
naming Pitts, Samuel j. Henry, G. FL
bert Anadale, John H. Edwards, jr.;
Frederick N. Zihlman, Daniel r. Cris-
singer and Henry c. Maddux Of the
Hamilton Hotel Co.
Six months later Pitts was indicted
on the embazzlement charge. This in
dictment, however, was Represented to
the October grand jury, which re-
turned 1t in slightly revised form.
The 100 counts Of the indictment
charged Pitts with embezzling sums
from the Smith Co. ranging in amounts
from $1,000 to $155,000 during the
period from May 4, 1927. to October
|. %, 1929.
Pitts, Edwards and Anadale subse-
quently we're found guilty on an tndict-
ment charging them with conspiring
to embezzle $4,000, 900 of the company's
funds and destroy allegedly incrininat-
| ing records.
Henry, indicted on the same charge.
was granted a severance and has not
yet been tried.
Proceedings Disrupted.
Proceedings of two grand juries have
been disrupted during the past few
years by belated disclosure Of ineligi-
bility of q grand Juror. The most
, recent instance was the upset in the
third degree inquiry of the July grand
| jury, q member of which was disquali-
fed because he was q pensioner.
About $50 indictments handed down
by that Jury were nullified by the dis
covery. Henry L. johnson, the ineligible
| Juror. must explain to the court his
presence on the jury under q contempt
rule issued by Justice James M. Proc
| tor The third degree evidence was re-
presented to the present grand jury.
with resulting indictment OF 1a@olice-