Evening star., 1935-02-04
Cummings Error Confession
RejeCted-EvidenCe Held
Wrongly Admitted.
GARNETT UNDECIDED
ON NEW PROSECUTION
Spots on Mat of Automobile Is
Held Not Linked by Prosecu-
ton to Date of Fire.

Refusing to consider confession
of error filed by Attorney General
Cummings in the Sigma Chi Fra
ternity arson case, the District Court
of Appeals nevertheless reversed the
conviction of Edward ]. PARTON and
Alfred H. Smith today on the ground
evidence had been improperly admit
ted at the trial.
In brushing aside the Attorney
Generals confession of error, the Ap-
pellate Court relied on the old Eng
lish case of John Wilkes, accused OF
outlawry, in which similar situation
arose The English court declined to
act on a confession Of error by the
prosecutor and decided the matter
upon its merits.
Regarding the present case, the
court said: 1--WE cannot, as we think,
alone on the strength of the Attorney
Generals official action, acquit our
selves OF our responsibility to examine
the whole record before setting aside
a conviction for a crime"
Two Justices Dissent.
Associate Justices William Hitz and
Charles H. Robb diSsented from the
majority opinion, but did not write
an opinion of their own.
The action of the appellate court
means the case will be sent back to
the lower court for further action.
U. S. Attorney Leslie c. Garnett said
he had not decided whether he will
nolle PROSE- the case or prosecute the
boys again.
The Government contended at the
trial that PARTON, a pledge, and Smith,
president of the local Sigma Chi
Chapter, deliberately started a fire
which destroyed the fraternity house
July 9, 1888. The defendants offered
an abili that they were on their way
to New Freedom, Pa, at the time of
the fire. 1t was this alibi which
prompted the Attorney General to file
his confession Of error in the case
after the prosecuting attorney had
submitted his brief expressing the
belief the conviction was warranted
by the evidence and asking the Ap-
pellate Court to affirm 1t. The At
torney General decided the two de-
PENDANTS were innocent after Depart
ment of Justice agents made a test
run to New Freedom and decided
Smith and PARTON could not have
been in Washington at the time OF
the fire and still had made the trip as
testified.
Reversed on Evidence.
The appellate court reversed the
conviction because the trial court ad-
mitted evidence concerning a gaso-
line stain in the rear of the automo-
bile driven by the defendants on the
night of the fire. A micro-analyst
was permitted to testify that the spot
gasoline similar to that used In start
ing the fraternity house fire. The
Government contended at the time
the stain in the car was made by a
can of gasoline the young men hauled
to the fraternity house before the
fire started.
Regarding this, evidence. the appel
late court pointed out the prosecu-
ton had offered no evidence to link
the spot in the car to the date OF
the fire The opinion held it was
fatal error ito permit the jury tc
infer that because of a blue stain or
the car mat the defendants had pur-
chased blue gasoline on July 9 with
out any evidence to show the stain
was there at the time Of or imruedi-
ately after the fire"
The stain was not discovered unit
about 10 days after the fire.