Evening star., 1939-04-25
MistriaI Move
In Warning
Case Fails
Defense Charges
Prosecutor With
Misstoting Record
BY CARTER BROOKE JONES.

ana q directed verdict OF not guilty
were overruled by Justice Bolitha
j. Laws in District Court today al
the close of United States Attorney
David A. Pines opening statement
at the third income tax fraud trial
OF Emmitt Warning, former num-
bers game chieftain.
Mr. Pine said he would show con
sciousness of guilt" by introducing
evidence of the jury -tampering plot
that caused mistrial of the case
early in February. Emmitt Warning
is serving 26 months for trying tC
influence jurors at the two previous
trials.
The prosecutor told the jury oi
five women and seven men he would
prove Emmitt sent liquor to deputy
marshal, intended for jurors, and
after agreeing to pay off note fol
this jury custodian. gave him $l(
on one occasion and 500 on another
Mr.. Pine referred to John B. Upper
man. who is serving year.
Defense Makes Two Motions.
AS the district attorney sat down
Defense Counsel F. Joseph Dono-
hoe arose and made the two mo-
tions. He charged the prosecution
with misstating the record in the
contempt proceedings that grew out
of the jury scandal citing En-
mitt's alleged promise to pay of
a note for Upperman and the asser-
ton that the gambler had sent
liquor intended for jurors
Mr.. Donohue, basing his motion
for a mistrial on those statements,
asked the court for directed ver-
dict on the ground that the prose-
cutor's opening was not consistent
with the indictment, in that he had
not promised to prove the conspir-
acy charge. Emmitt and his BROTH
ers, Charles and Leo. and Gordon
L. R. Sadur, an accountant, are
linked in the indictment in an al
legged conspiracy to defraud the
Government of taxes from the num-
bers game, though Emmitt is on trial
alone this time, the other defend
ants having been granted a sew
erance
Justice Laws held that Mr.. Pine
had outlined conspiracy suffi-
GENTLY and that the other motion
was not justified. The court warned
the jury, however. that an open
ing statement was not evidence and
promises of proof must be backed
up by competent testimony.
In his opening statement Mr.. Pine
promised to show that the vast ana
complicated" Warning numbers busi-
ness, starting from a shoestring in
1894. was taking in $500 day BY
the end Of that year and later 5000
a day. The Government, he. said,
will prove that the Warnings and
their tax consultant evaded around
S28 900 in taxes from a business that
crossed $2,OOOOOO for each of the
years 1885 and 1896.
The prosecutor again alluded to
the police protection item of $4,000
which Emmitt allegedly told Fed
eral agents he paid during 1885 and
then assertedly tried to conceal
from taxation. Mr. Pine called EN-
mitt "the brains" of the illegal busi-
ness"
The district attorney said the evil
dence in the jury-tampering con-
tempt hearing would be offered mot
as bearing upon this particular case
but as showing things which men
don't do unless they are guilty.
The first witness was Andrew j
Tregeser of the Baltimore internal
revenue Office, who identified income
tax returns which the Warnings
made.
Judge Issues Warning.
The jury was chosen late yester-
day after the entire day had been
consumed in questioning members
of several panels sent in success
sively. Two alternate jurors, both
men, also were selected.
AS the jury was sworn in and
ordered kept together throughout
the trial, Justice Laws issued, in
addition to the usual instructions
a warning that recalled the recent
jury -tampering scandal. He told the
jurors that they were to allow no
one outside attaches assigned to
guard them to speak to them or ap-
proach them in any way.
Huddled beside his attorneys, Mr.
Donohue and Myron G. Ehrlich,
Emmitt Warning took an active part
in the selection of jurors yesterday
His brothers were not present.
Scores Rejected.
Scores of jurors were rejected be-
fore the box finally was filled to the
satisfaction of both sides. The Gov
ernment used nine peremptory chal-
lenges and the defense seven. Each
could have used 10.
The jury:
Mrs. Ellen L. Ridgeway, 33, house
wife, 1922 Georgia avenue NV;
John c. Weldon, jr., "a, real estate
broker, 1855 Massachusetts, avenue
NV; Mrs. Dorothy G. Schneider
IS, housewife, 1853 Iris street NV;
Randolph Bowie, 43. grocery store
manager, 1910 Kenilworth avenue
NV; E. Hugh Augusterfer, sr., So
salesman, 4422 New Hampshire ave-
nue. NV; Mrs. Marion D. Nc
Queen, 30, housewife, 4917 First
street NV: Mrs, Margaret c. Sal
keld, 80. housewife, BOLT Courtland
place NV: Robert L. Harper, 80
gasfitter, Alb Hamilton street NV;
Mrs. Viola G. Wenzel, 26, 11O6
Queens street NV; Walter A. Crist
40, bank teller. 3l33 Connecticut
avenue NV; James w. S. Hardy
As, advertising manager, 1911 Twen-
ty-second street NV; Herbert H
Myers, 40, salesman, 322 Allison
street NV.
Alternates-Edward N. Besslinp
a, secretary of the Association OF
American Railroads, 1345 Nineteenth
street NV, and Thomas E. Fla
herty, 43, Union Station ticket
seller, $500 Fourth street NV.
Sheppard to Speak
Civic groups and others who have
Il ~