Evening star. [volume] (Washington, D.C.) 1854-1972, 1938-11-24
:. Sherr Cleared;
Warning Trial
In Recess
Defense of Trio of
Brothers and Sudur
Begins Monday
By CARTER BROOKE JONES.

BY CARTER BROOKE JONES.
One of the five defendants in the
Warning income tax case today
stands cleared of implication in the
alleged conspiracy to defraud the
Government of taxes on profits from
the numbers game.
The exonerated man is Henry L.
Sherr, 81, Junior partner in the firm
of tax consultants the three Warning
brothers retained to untangle their
difficulties with the Internal Rev.
enue Bureau. Justice Bolitha j.
Laws announced in District Court
late yesterday he would grant a
. motion for directed verdict OF
acquittal in the case of Mr.. Sherr,
5 but would deny similar motions in
behalf of the Warnings and Gordon
8 L. r. Sadur, head of the tax &C
counting concern and brother-ln-
law of Mr.. Sherr.
With the trial in recess for the
! rest of the week, the defense will
begin testimony Monday.
Involved Protection Item.
The Governments evidence against
Mr.. Sherr involved the highly spot
lighted police protection money
which Emmitt Warning was alleged
to have paid. Mr.. Sadur had pre-
pared a revised tax schedule show
ing the Warnings income for 1885,
and in this connection introduced
an affidavit signed by Mr.. Sherr.
In this document Mr.. Sherr said
he had taken it upon himself" to
add the protection money for that
year, $3.50 a week, to the Warning
''hjt" column-that is, the amount
of wagers they lost. The item did
not appear as protection" how
ever, but was listed anonymously.
Revenue Bureau accountants fer
reted it out in going over the books,
the Government showed.
Later, according to the affidavit,
Mr.. Sadur told Mr.. Sherr that
lection money and added in red pen
Cling $4,000 for the year to the
gross revenue and the expense COL
umns, thus keeping the net income
the same. This occurred in the &C
counting Offices, Mr.. Sherr said.
Two Internal Revenue agents tes-
titled that the schedule was brought
over by Mr. Sadur without the red
penciled notation and he added it
after coming to their Office.
Laws Explains View.
Taking up the case of Mr.. Sherr,
Justice Laws said the Governments
evidence must exclude every reason
able hypothesis not consistent with
guilt. There would have to be an
assumption that this evidence
showed an intent to defraud the Gov
eminent, the court pointed out. Even
assuming, for the sake of consider
ing the point, that the affidavit had
been false, Justice Laws added, it
might constitute perjury, but would
not necessarily prove Mr.. Sherr had
entered into conspiracy to de-
fraud the Government of income
tax
There is no evidence" the court
concluded, that Sherr did not know
this protection money was not de-
ductible, assuming it was not, as
the Government contends. There
is no evidence that he had any
knowledge that these tax schedules
were false, if they were; that he
did not believe them true in every
particular"
Justice Laws held that the Gov
eminent had made out prima
facie case of conspiracy against the
Warning brothers and Mr.. Sadur. In
other words, there is sufficient evil
dence to go to the jury, in the courts
opinion.
William B. OConnell of counsel
for the Warnings moved to strike
from the record all reference to the
protection money.
Claims Proof Lacking.
There is no proof any protection
money was paid except certain
statements attributed to Emmitt
Warning" he contended, land the
Government cannot prove it with
out other evidence"
The motion was denied.
The motion for directed verdict
acquitting Mr.. Sherr was argued
successfully by Irwin Goldstein, a
former Assistant United States At
torney. Similar motions were ar
gued by Harry T. Whelan, for the
Warnings, and Leo A. Rover, counsel
for Mr.. Sadur. These efforts to
uuash the Governments case were
opposed by United States Attorney
David A. Pine and Assistant United
States Attorney John j. Wilson.
The Government rested yesterday
afternoon with the evidence of some
20 witnesses. Prosecution testimony
occupied eight court days.
The Government charges to the
Warnings continuing conspiracy"
since 1884 to defraud the Govern
ment of some $4,000 in income tax
over period of three years. Sadur,
according to the Governments the
DRY, entered the alleged conspiracy
when he took over the Warning tax
troubles in 1886.
How long the defense expects to
take has not been revealed, but OBJ
servers predict that the case will go
to the jury early next week,