Evening star., 1939-02-24

pressed, became vague as to his rec
ollection. After adjournment of the
court, counsel for Mr.. O'Connell
made an unusual and painstaking
examination of witnesses and even
tually reached the conclusion that
Mr.. O'Connell was in the court house
on the night Of Friday, December 2.
MIR. O'Connell then again took the
witness stand and explained to the
court he had been persuaded he was
mistaken. When asked what his rec
election had been when the question
first arose, Mr.. O'Connell stated it
was hazy and that he had checked
up with various persons who might
have knowledge of his whereabouts
and 1t was based upon what they told
him he had testified in the court
that he was positive as to his where
abouts.
I'm giving study to the proceed
ings pending before me, I read sew
eral times the decision of the Su-
preme Court of the United States
in the case of Gompers VS.. Bucks
Stove g. Range Co., 221 U. S. 418.
In this case, the court held, at page
344 that lit is certain that in pro-
ceedings for criminal contempt the
defendant is presumed to be inno-
cent, he must be proved to be guilty
beyond reasonable doubt, and
cannot be compelled to testify
against himself" This decision,
therefore, establishes that in the
present case all rules applicable to
trials of criminal cases, except the
right of trial by jury, shall apply.
Thus there are certain well-rec-
ognlzed rules which I must bear in
mind. If the case were being tried
by jury I should have to instruct
them to follow these rules and. of
course, also must follow them. In
many jurisdictions, throughout the
United States, it has definitely been
decided that the uncorroborated tes-
t1mony of an accomplice may not be
MADE the basis of conviction in a
criminal case. In this jurisdiction.
IL may be the basis of a conviction.
but such uncorroborated testimony
must be received with great care
and caution.
Upperman An Accomplice.
L have indicated that the witness
Upperman has had little, If anv COR
roooratlon of his testimony as to the
payment Of money to him bv either
Mr.. Whelan or Mr.. O'Connell, Mr.
opperman placed himself in the
category Of an accomplice when he
testliled to the facts against Mr.
Whelan, but in addition to his ad-
mltting being an accomplice, the
evidence showed he was guilty. of
other wrongful acts. He confessed
receiving whisky from Emmitt War
ring while jury in his charge was
deliberatlng the fate of Emmit
Warning in criminal case: that
this whisky had been sent to him
on several occasions, and it deyel-
oped he felt so we'll established with
Emmitt Warning he took the lib
erty to telephone for whisky when
ne wished 1t. This deputy marshal
also told certain of the Jurors who
mad Joined him in drinking Emmitt
warnings gifts of whisky. that the
warnings were not such bad bows
l am not sure that Mr.. Upperman
did not go farther than this. al
though he denied doing so. More
over, Upperman showed an intimacy
with both Emmitt and Charley War
ring by offering to bear a message
from them to certain convict in
the Atlanta Penitentiary.
Some few days before the second
jury was impaneled, Mr.. Upperman
approached the court to find wheth-
er the jury would be locked up dur
ing the course of the trial. explain
ing 1t was necessary to make ar
rangements if this was so. It now
appears these arrangements were
simply perfunctory. There is indi-
cation that after the court told this
court official the jury probably would
De locked up. one of the defendants
began to deal with prospective
jurors. When the second trial iurv
was placed in charge of Mr.. Upper
man, ne again obtained shipments
OF whisky from Emmitt Warning.
1t is obvious to me that in the event
he had been able to render a serv-
ice. Mr.. Upperman would have re-
ceived additional remuneration from
Emmitt Warning. During the course
OF this hearing, it developed that
Mr.. Upperman. while an officer of
the court, was by his own admis-
sion engaged in gambling on horse
races and even making bets in the
numbers game.
"A Totally Discredited Man."
These facts bring the witness
Upperman before the court not only
as an accomplice, but as a totally
dlscredited man. Notwithstanding
this the court might have been i'm
pressed by this witness after his
frank disclosure of his wrongful
deeds had he shown full and COM
plete attitude of telling the truth.
However, after an impressive state
ment on direct examination in ex-
planation of the facts involving the
charges against him and Emmitt
Warning, the witness Upperman i'm
mediately was discredited when
asked as to the time he first met
Emmitt Warning. On cross-exami.
nation Mr.. Upperman stated def
nitely that he never knew Emmitt
Warning before the first trial, which
was in November, 1898. When asked
the question wasn't it fact that
on many occasions prior to that time
he gave him money, the witness
Upperman began to study over the
question and when told by the court
that was type of question he could
answer without study, Upperman
admitted that on two prior occa-
sions Emmitt Warning gave him
money and that he had known
Emmitt Warning at least one and
one-haf years prior to November.
1888. There were other times during
the testimony of Mr.. Upperman
when his recollection was vague.
In light of this tvpe of testiroonv