Evening star., 1939-02-24

DeyOnQ doubt that ntS IN with
reason? Would not a reasonable
man, dealing with problem of this
importance in the affairs OF his daily
life, be caused to pause in reaching
a decision?
I'm this connection the court has
been challenged with the natural
inquiry. why would Mr.. Upperman
make untrue charges against Mr..
Whelan and Mr.. O'Connell? I am
not able to understand any possible
reason. However, when the Gov
ernment is challenged to prove mo-
tive for crime the law is that 1t
may do so but it is not necessary in
order to convict. The same rule
must arise to protect defendants.
Therefore it is not necessary for Mr..
Whelan or Mr.. O'Connell to prove
motive on the part of Upperman
to implicate them in wrongdoing.
Testimony Insufficient.
without reference to the defense
testimony, I find the testimony of
Mr.. Upperman insufficient to con-
vince me beyond a reasonable doubt
that these two attorneys are guilty
as charged. But my judgment is
fortified by some phases of the case
made by the respondents.
"Of course. one might speculate it
is possible that Upperman told Mr..
Whelan about the $3.50 note, and
that thereafter Emmitt Warning
gave Upperman a one hundred dol
lar bill. However, Uppermans tes-
timony is to the contrary. He
testified Mr.. Whelan paid him the
money in five and ten dollar bills.
Deputy Marshals Allen and East
stated clearly that Mr.. Upperman
had exhibited hundred dollar bill
to them a few days before Christmas.
They were certain it was not as far
back as December 2. There is
nothing to contradict the testimony
of these two witnesses and no motive
shown why they should testify false
ly against Mr.. Upperman. Under
the circumstances. their testimony
cannot be brushed aside by me.
Many times a court has In
structed a jury that evidence OF
good character alone might be suft1-
cient to raise a reasonable doubt.
1t seems to me it might well be
that in this case, where the testi-
mony against the defendants Is OF
the type presented before me, the
good character of these counsel
over many years of practice should
come to their defense. 1t would be
tragic to convict them II innocent;
and since I feel that upon all the
testimony which has been presented
to me, there is a reasonable doubt
in my mind of their guilt, it is my
duty to vindicate them. Accord
ingly,. rule Mr.. Whelan and Mr..
OConnell are not guilty of contempt
of court.
"Guidance to Counsel"
"In this connection feel I should
make comments to these two coun-
sci as assistants to the court con-
cerning facts to which they testified
during the course of the trial. Mr..
Whelan testified that on at least
three occasions between the first
and second trials of his clients Mr..
Upperman came to his Office. He
also testified that he knew Mr.. Up
perman for years had been in
charge of jurors when they were
celebrating over night. Therefore,
he would assume that Mr.. Upper
man would be in charge of the Sec
ond Warning jury. On the first
visit Mr.. Upperman asked Mr.. Whe-
Ian for some money to take care of
$3.50 note. On the second visit
Mr.. Upperman was given the usual
IS Christmas present. On the third
visit, which was shortly before the
second trial of the Warning case,
Upperman indicated he would be
glad to take a message from En-
mitt Warning or Charles Warning
to man named Bond in the
Atlanta Penitentiary. At least
two of these approaches to Mr..
Whelan were highly improper. Mr..
Whalen recognized them as such.
When the money was requested for
payment on the note, Upperman
placed Mr.. Whalen in the posi-
ton that If he refused to do any,
thing about the matter Upperman
might be tempted to hurt his client
before the next iurV committed tn