A P O N E
February 27th, 1931
o’clock A. M.
respondent was served on the 27th of February, 1929, with a
from this Court requiring him to appear before the grand jury on the 12th
day of March, 1929, at 10 o’clock A. M.
On the 11th of March he
entered his appearance in this court, submitted himself to the
the court, and made an application to the court to postpone his
response to the subpoena until the April term of the court, or until
time as his appearance might be directed by the order of the court.
In connection with the petition and
made a part of the petition by express reference there was submitted to
court an affidavit executed in Florida and sent by the respondent to
Chicago. The affidavit was that of a
doctor named Phillips.
The affidavit stated that he was
acquainted with the respondent, that he had been attending him ever
13th of January; that the respondent was then under his
treatment. That since January 13, 1929,
the respondent had been suffering from bronchopneumonia pleurisy with
of fluid into the chest cavity, and for six weeks was confined to his
his home on said Palm Island, and had been out of his bed only for ten
last past, that he had not fully recovered from the disease and that in
professional opinion of the affiant his physical condition was such
would be dangerous for him to leave the mild climate of Southern
Florida and go
to Chicago, and that to do so would imperil the safety of the
there would be very grave risk of relapse which might result in his
the recurrence of pneumonia; that the doctor advised against requiring
respondent to go from Florida to Chicago, and that it would be
with the personal safety of the respondent to go to Chicago; that the
expressed by his was concurred in by three professional consultants of
of Miami, Dr. Goudy, Dr. Maxwell, and Dr. Pierson, all of whom may be
by addressing them at 120 Shoreland Arcade in the City of Miami.
Now as to this affidavit the fact is
that it was executed in the office of a lawyer; that it was taken from
lawyer’s office and sworn to before the United States Commissioner and
over to the respondent. It appeared
first in the court accompanied by a letter which concededly was written
respondent and in which there was a reference to his desire to obtain a
time for his appearance before the Grand Jury. The
doctor said he did not pay very close attention
to the affidavit
when it was dictated by the lawyer. There
is no contention, however, by the respondent
here that he did not
understand the allegations of the affidavit. He
was not undertaken to assert any lack of
familiarity with the
statements in the affidavit. On the
contrary, he adopted it and sent it to Chicago to the attorneys to be
the purpose indicated.
Aside from the opinion of the doctor
as to what was the matter with the respondent, there were certain
facts in the affidavit which could not have escaped the attention of
who had given even a slight consideration to the language of the
There is a positive statement of
fact that the respondent had been confined to his bed at his home for a
of six weeks after the 13th of January, and there is the
and direct statement that he had been out of bed only for ten days last
Now the testimony offered by the
respondent consisted of the evidence of Drs. Phillips and Owens and of
Dr. Phillips’ testimony, of course,
must be considered in the light of the telegram which he sent to Dr.
which he characterized the sickness of the respondent as not serious in
character. He has given an explanation
for that, but without saying anything further concerning the testimony
Phillips, I think clearly that we must decide the question of fact as
respondent’s illness in January upon the testimony of Dr. Owens and the
Dr. Owens reached Miami sometime
between the 15th and 20th of January and found
him, he says,
seriously ill from the disease mentioned. He
remained there a few days, and when he left,
shortly after the 20th
of January, so far as temperature and pulse were concerned, the
the patient was about normal.
One of the nurses when to the home
on the 5th of January and remained a little less than three
weeks. The night nurse who was called in
by Dr. Phillips went there on the 13th or about the 13th
and remained seven or eight days. I
think she said seven to ten days. At any
rate, the nurses had gone by the last week of January, and the evidence
establishes beyond all reasonability of doubt in this case that during
month of February the respondent was not confined to his bed.
The evidence shows during that
period frequent attendance at the race track; it shows a trip in an
it shows a boat trip, and taking all of the evidence, it is perfectly
that at least after the 2nd of February it could not be
stated that the respondent was confined to his bed, and that the
the date when the affidavit was made, namely the 5th of
the respondent had been out of bed of only ten days last past was
Now the result of the whole thing
was that there was a short extension of the time within which this
was to appear before the Grand Jury.
But I think that we miss the point
in this case when we lay stress upon what happened when counsel for the
defendant and Dr. Anderson appeared before this branch of the Court, or
lay stress upon the inconvenience, if any, to which the United States
subjected by the failure of the respondent to come here on the 12th,
or if we lay stress upon the statement of the respondent in his
a continuance that he was willing to come here whenever the Court
to come, or the statement which it is said was in the letter that he
wish to be in contempt of court, -I say we miss the point in this case
lay stress upon that.
The point in this case as I see it,
is this: There has been a system established for the administration of
justice. The Court is a part of that
machinery which is erected for the administration of justice.
Now the Court deals with litigants,
with witnesses, with jurors in only one way, and that is through the
Court, and when the process of Court issues it is to be respected, it
is to be
obeyed, it is not to be trifled with, it is not to be flaunted; and
respect to the process of the court the duty rests upon litigants and
witnesses and upon jurors to deal honestly and fairly and frankly with
court; and when an attempt is made to interfere with the function of
process of the Court, when an appeal is made to the Court to relieve a
from obedience to the process of the Court, the Court is entitled to
fullest, fairest and most complete disclosure of all the facts. In no other way may the Courts operate.
Now here we have an application
addressed to this Court with respect to the execution of the process of
Court in which it is represented to the Court that the respondent had
out of bed for ten days, when it must have been a matter of general
in the community in which he was staying that he was not sick in bed at
Now the point in this case is the
effect of conduct of that kind upon the administration of justice, and
situation is not changed by the [unreadable] which the Court took with
to this document. The situation would be
the same if the Court had acted in granting the continuance for some
entirely different from the one stated in the affidavit.
The point to the case is that
instead of obeying the process of the Court, the respondent, to be
from obedience to the process of the Court, sent this affidavit which
these false statements.
Upon the record as it stands there
is nothing for the Court to do except to adjudge the respondent guilty
contempt of Court as charged in the information, and as punishment for
contempt the respondent will be committed to the County Jail of Cook
for the period of six months.
The United States may prepare the order.
MR. EPSTEIN: If you Honor please, I
wish to enter a motion in arrest of judgment.
THE COURT: Yes.
EPSTEIN: And in support of my
motion for arrest of judgment I wish to assign the argument that there
proof that the defendant had any knowledge of the false representations
were made, as I made before in my argument, and I wish to urge in
the motion in arrest of judgment that there has never been any service
personally of the rule to show cause in this case; and I might say all
other point that were heretofore argued and presented and contained in
motions heretofore made.
THE COURT: The motion will be
MR. EPSTEIN: May I have an exception
to the overruling of the motion in arrest?
THE COURT: Yes.
MR. EPSTEIN: Now if your Honor please, will your
make any findings of
fact in connection with the –
THE COURT: Well I have
directed the United States
Attorney to prepare an order.
MR. EPSTEIN: Your
Honor, the verdict was that –
COURT: He will put in this order
the facts found. I have found no that the
charge of the information –
MR. EPSTEIN: That he was guilty of
the charges contained in the information.
COURT: Oh, that may be embodied in the
which the United States submits.
EPSTEIN: Will your Honor – until
the presentation of that order I suppose there is no real final order
THE COURT: What is the
bond of the respondent?
MR. EPSTEIN: $5,000 and he has
voluntarily appeared, as your Honor knows.
THE COURT: I think that is a
MR. EPSTEIN: As the
matter stands on the –
COURT: You may present the formal order
next morning at 10:00 o’clock.
MR. EPSTEIN: At that time will your
Honor allow us an order –
COURT: There will be no order this morning. I have announced my decision in the case and
formal order will be presented here Monday morning at 10:00 o’clock by
United States Attorney for entry. In the
meantime the respondent may be at liberty on the bond which he has
given in this case, if that is satisfactory to the respondent.
EPSTEIN: And at that time, if
you Honor please, or shall we make a motion now, praying an appeal?
Honor allow an appeal?
COURT: I will allow an appeal. You can present your petition when you have
it ready, petition and assignment of errors and bond on the appeal will
same as the bond here, $5,000.
MR. EPSTEIN: And supersedeas?
COURT: I think that bond is sufficient
COURT: Yes, supersedeas, bond $5,000.
EPSTEIN: Will your Honor allow
On $5,000 bond.
EPSTEIN: On $5,000 bail.
COURT: I may, however, limit the operation
supersedeas. I think that you should
prepare on this hearing a bill of exceptions within twenty days. I think that would be ample time for you to
do that, so that you can get the record up and get it docketed before
of Appeals. I should like to limit the
of operation of the supersedeas so that the case may be considered
Court adjourns in July. I do not think
that is any hardship upon counsel.
EPSTEIN: Well, it will be a hardship –
COURT: Sometimes in matter of this kind a
of force of the Court’s acts, if they are correct, is lost in delay,
think it is important that the questions which are involved should be
disposed of at as early a date as possible. I
am disposed to do everything to facilitate your
getting your appeal
and your bill of exceptions.
EPSTEIN: Well, as to that I don’t know. For twenty days right now to me happens to be
COURT: Thirty days.
EPSTEIN: -- a time when I am
going to be very busily engaged, but I have able assistants and counsel
colleagues and cogitators with me.
COURT: Did you both have reporters in
Yes, your Honor.
COURT: The record in this case is short
can take it and abstract it and make a statement of the evidence in a
WAUGH: Of course it has to be written up
first. We have not had it written up
EPSTEIN: We have not had it written up
as we went along.
COURT: Those questions may be disposed
of on Monday.
WAUGH: All right.
an adjournment was taken
to Monday, March 2, 1931, at 10:00 o’clock A. M.)