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CALL FOR COOLIDGE AND DAVIS TO FACE MITCHELL IN COURT PROPOSED BY REID

Defense Strategy Reaches Climax in Move to Subpoena President and Secretary as Accusers.

BILL OF PARTICULARS IS REFUSED BY COURT

Sessions Adjourned Until Monday After Sensational Maneuver of Colonel — Morning Produces Heated Debate Between Attorneys Over Procedure.

Col. William Mitchell, who since the beginning of the general court-martial trying him on charges of violating the Ninety-sixth Article of War, has battled in his characteristic manner for every inch of ground, today reached the climax of his fight when he announced an effort would be made to subpoena the President of the United States and the Secretary of War to appear before the court and personally accuse him of his alleged offenses.

The background of his plan had its formation yesterday afternoon when the court contended that President Coolidge and Secretary Davis were Col. Mitchell's accusers, in overruling the motion of Representative Frank R. Reid of Illinois, chief civilian defense counsel, that the procedure leading up to the court-martial was contrary to the rules as laid down in the manual for the conduct of such trials.

At that time Representative Reid repeated the decision of the court for the benefit of the record that "Secretary Davis is his commanding officer. [[?]] his accuser and his prosecutor."

The decision to take the unusual step came at the close of the morning session, when agreement was reached between counsel for both sides to adjourn until Monday morning in order to prepare and examine witnesses. The adjournment followed a denial to the defense of a bill of particulars and the pleading by Col. Mitchell of "not guilty" to each charge and specification.

Reid Explains Move.

Representative Reid, after the session, said that since the court had ruled the President and the Secretary of War were his client's accusers and that in all probability it will be necessary for the accuser to face the accused when witnesses are called, there is nothing to do but take the opening left for him. 

A conference, however, was to be held later on in the day between both sides on the matter. It was learned authoritatively, however, that if the decision is reached to have President Coolidge and Secretary Davis appear before the court as Col. Mitchell's accusers, the prosecution will not make the move.

Regardless of the decision of the defense in the matter of subpoenas, the court-martial, in the opinion of Army legal officers, probably will refuse a presidential subpoena. Precedent, they said, is all against such a course. 

Under the regulations the Secretary of War cannot convene a general court-martial. This privilege is left to commanding officers of troops, but the President of the United States can at any time call such a body. In the Mitchell case, neither his commanding officer in Texas nor his commanding officer in the District of Columbia, Brig. Gen. Samuel D. Rockenbach, had anything to do with the investigation of the court itself.

Adjutant General Acts.

Instead, as brought out by the prosecution yesterday, Col. George A. Nugent was directed by the judge advocate general of the Army to investigate statements of Col. Mitchell and prepare charges and specifications. The judge advocate general's authority was the Secretary of War and the Secretary of War's authority was President Coolidge.

The court yesterday declared that both President Coolidge and Secretary Davis are Col. Mitchell's commanding officers.

Col. Mitchell's defense suffered another blow today when the court denied him a bill of particulars for which he asked last evening just before recess on the ground that the charges and specifications were too vague to form a case.

Much of the morning session, which got under way 25 minutes late, was given over to a three-cornered argument among Representative Reid, Col. Sherman Moreland, trial judge advocate, and Col. Blanton Winship on the existence of such a term in military courts-martial. The argument finally was settled by the court, which sustained Col Winship's opinion.

Pleads Not Guilty.

Standing at attention, with shoulders erect and chin held high, Col. Mitchell pleaded "not guilty" to the general charge of violating the ninety-sixth article of war and the eight enumerated specifications, all of which charged "conduct prejudicial to good order and military discipline."

Col. Moreland then read from the manual the crimes and offenses that would occur under the ninety-sixth article or what was termed as the "gist of the offenses" and just before he was to make his opening statement the question of witnesses was raised by Representative Reid.

The defense counsel said he understood three Texas newspapermen to whom Col. Mitchell had made his famous San Antonio statements were present and he asked permission to examine them before they were placed on the stand by the prosecution. Col. Moreland explained they had just arrived in the city and he, himself, had not met them and it was on his suggestion the court recessed until Monday to allow both sides to question the witnesses.

The newspapermen present were Kenneth mcCalla of Houston, Tex., H. H. Yeager and Harry Lee McCleary, both of San Antonio.

Court Opening Delayed.

It was 10:25 before the court filed into the trial room from its antechamber. The members had been closeted in private session for more than a half hour and the epectators who filled the courtroom were beginning to become restless. A wave of relief swept the crowd as the orderlies announced: "Everybody will stand while the court enters."

To facilitate the proceedings, Col. Moreland, the trial judge advocate, recommended that the reading of the record of yesterday's proceedings be dispensed with. Mr. Reid agreed to the suggestion with the understanding that any errors found in the record might be corrected later, and the court ordered the record set aside for future scrutiny.

Col. Moreland then plunged immediately into the unfinished debate of yesterday, in which the defense demanded that the court order the trial judge advocate to file a bill of particulars clarifying the charges against Col. Mitchell. As the court recessed yesterday afternoon Col. Moreland agreed to do this "as a matter of courtesy."

Changes Mind Overnight.
   This morning, however, found the trail judge advocate in an entirely different frame of mind. He pointed out that the basis on which the defense made the request were exactly the same as those on which it had previously moved for dismissal for lack of jurisdiction. In that previous motion, Col. Moreland said, the defense had dwelt on the lack of authority and had been overruled by the court. 
   In view of these facts, a Col. Moreland withdrew his earlier acquiescence and said that he would be pleased to hear any further argument counsel for Col. Mitchell might wish to submit. This sudden reversal of opinion on the part of the prosecution precipitated a new sensation, the first the military prosecution, the first the military prosecutor had thus far sprung.
   Mr. Reid replied that no court-martial should attempt to investigate a vague case. “That’s common sense, and needs no law to interpret it,” the chief counsel for the for the defense declared. “It is a matter of justice that they should point out to us the things they are to reply on in this case. That is the practice of the courts of every land.

      Sees Charges Too Broad.
   “The charges against Col. Mitchell are so broad and indefinite.” Mr. Reid continued, “that counsel for Col. Mitchell is unable to understand their intent and is, therefore, entitled to know precisely what each charge means.” He further declared that the trail judge advocate should be ordered to definitely point out just what the prosecution believes has been violated in each specification. 
   “If these charges are so vague that the defense cannot base its case on them, then they are not legally sufficient,” Col. Moreland thundered back with some show of feeling. “But this court has already found that this case is legal and, therefore, that these specifications are legal.
   “A bill of particulars is a paper that may be served in order that something may be added, not taken away in order to make something else clear. It’s only office is to remove vagueness by the addition of something, not by the subtraction of something else.”
   “Here we are asked to tell the defense just what we are going to do and are going to say. I submit that this court has no power to change these specifications. Whence would come the power to permit yo7 to change the substance of these specifications after they have already been found legal?
   “And finally, there is no such thing as a bill of particulars in military law. It’s substitute is a motion to quash, which was moved previously in this trail and was overruled by this court. I, therefore, submit that the court should not sustain the recommendation of counsel for the defense for a bill of particulars.”
   Somewhat disturbed by this unexpected change of front. Mr. Reid replied with a tinge of sarcasm that la strange thing has happened overnight. On the first flush,” he said, “our application seemed to appeal to the trail judge advocate’s sense of justice. Now, however,” he continued, “there has been a reversal of this appeal, and the defense is asked to dig through 52 typewritten pages and ferret out for itself the bases for the charges.
   “Why, not even the prosecution,” he asserted, “knows enough about this case to point out these things.”
   For the first time  since this trail began, two and a half days ago, the trail judge advocate dropped the cloak of extreme tolerance that he had worn so courteously and, flushed with anger, thundered back: “Who is to blame for these long statements? Who is to blame? By what right does the counsel of the defense ask me to correct the voluminous it’s of his own client?”

       Centers on Statement. 
   The document around which this passage at words centered is composed largely of the statements Col. Mitchell made to newspaper man, for which he now faces trail on charges of insubordination and conduct prejudicial to military discipline. Representative Reid leaped to his feet and began answering Col. Moreland in vigorous language.
   Here Gen. Howze steeped into the impending conflict, however, and reminded the attorneys that they must address their remarks to the court and not to each other. 
   Here ensued a scene of apologies and retractions that were so flowery and profuse that the spectators guffawed aloud and some even applauded. The court itself smiled at the extravagant words counsel for each side employed to make it known they had not intended the slightest disrespect to the court nor discourtesy to one another.
   
         Request Is Denied 
   The court turned to the note law work of Winthrop and failed to find the words “bill of particulars” mentioned therein. Representative Reid pressed his argument that something specific be given him on which to base his case. Col. Winship thought that every argument of the prosecutor would be from the two statements which Col. Mitchell had made, and were the bases for the charges. He then rendered his opinion that the request be denied, and hearing no objections, the president made it the ruling of the court. 
   Picking up the charges and specifications Col. Moreland turned to Col. Mitchell, asked him to rise and told him all special pleas had been disposed of. 
   “How do you plead to the charges?” asked the Judge Advocate. “Not guilty,” declared the accused in a firm voice.
  Col. Moreland then mentioned specification one and received the same reply. To all the specifications Col. Mitchell denied his guilt. Representative Reid, who stood beside his client, addressing the court, said: “I want the record to show that the accused by his counsel pleads “not guilty” to each charge and specification. 
   Col. Moreland then began the reading of the ninety-sixth artifacts war and Representative Reid objected to his reading from the manual on the ground that “it is not the procedure of the court, owing to the ruling yesterday, and a separate and distinct proceeding, for the trail must be made by the orders of the President.”
   Col. Winship overruled Mr. Reid and Col Moreland read the ninety-sixth article of war and also from the manual which explained the crimes and offenses under the article. For a moment Col. Winship and Representative Reid thought the judge advocate’s action was his s opening statement, but Col. Moreland explained it was not so and he was following the regular procedure.
   It was here that Representative Reid again interrupted to question Col. Moreland about the prosecution’s witnesses and the recess was agreed. Col. Moreland observed in passing that he had left a sick bed to be present at the opening of the trial and he would be grateful for an opportunity to prepare his case with less hurry. 

COURT TO REFUSE TO CALL COOLIDGE

Mitchell Counsel Plea to Be Denied—-Precedent for Action Is Found.

By the Associated Press.
   Counsel in the court-martial proceedings against Col. William Mitchell were taking advantage of an adjournment today over the week end to prepare for the next stage of their legal tussle. 
   This will be the actual trail of the officer on the charge of conduct violating go9d order and discipline, a stage of the proceedings barely reached, after nearly three days taken up by efforts of the defense to halt the trail, when the court took an early adjournment yesterday until Monday to permit preparations for the offering of evidence. 
   Col. Mitchell and his counsel, meanwhile, are going to decide whether they will ask the court that he be confronted there by his accuser, meaning either President Coolidge, Secretary of War Dwight Davis, or both.

Court Will Deny Move.
   If Representative Reid of Illinois, the defendant’s civilian counsel, does decided to ask the court to issue a subpoena for President Coolidge as a witness, there was no doubt today but that the move ours come to naught. Legal military authorities have definitely decided, it was said, that a court-martial has no authority by which it may summon the President as a witness, precedents for such an opinion, it was added, being found in decisions of the United States Supreme Court. 
   A request for the summons of Secretary Davis, however, would present a question which, in the absence of precedents, the court would have to decide on its own responsibility.
   Although he said he would reach no definite decision on the matter until the court reassembles Monday, Mr. Reid bases his contention that President Coolidge is the accused of Col. Mitchell on the statement of the trial judge advocate, Col. Sherman Moreland, that he is being tried by “a presidential court.” In ordering the investigation the War Secretary, the judge advocate explained, acted as agent f9r the President.

       Recess Is Surprise.
   The recess taken by the court yesterday, after a session lasting little more than an hour, came as a surprise, but was recommended by both counselors to give them an opportunity to examine three witnesses who had just arrived from Texas. Beyond hearing Col. Mitchell’s plea of “not guilty” and denying him the “bill of particulars” he had requested, the court covered little ground yesterday. 









 

Transcription Notes:
Stopped transcribing in the second column, after the second paragraph under the heading "Pleads Not Guilty." Also, the [[?]] concerns a period (I believe it is a period but it might be a washed-out comma).