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ARMY RESTS CASE AGAINST MITCHELL AFTER WARM ROW

Afternoon Trial Session Marked by Wrangle Over Evidence Admissions.

73 WITNESSES ASKED BY DEFENSE COUNSEL

Wilbur, Davis and Sanders Head List--Mass of Confidential Data Also Sought.

The prosecution in the general court-martial of Col. William Mitchell rested its case at 3:37 o'clock this afternoon after an hour and a half's wrangling over the admissability of several newspapers carrying the famous San Antonio statement as evidence.  

Immediately following the announcement by Col. Sherman Moreland, Representative Frank R. Reid of Illinois, chief civilian counsel, moved that the charges be stricken out on the ground that the prosecution had failed to make its case under the specifications. He further declared that under specifications 3, 4, 7 and 8 the prosecution proved "no intent."

The question of summoning the long list of witnesses requested by the defense at the outset of today's session was taken up and agreement was reached by both sides to discuss the matter tomorrow. It also was decided to allow Representative Reid to argue on his motion tomorrow morning and the court recessed at 3:50 o'clock until 10 o'clock tomorrow.

Reid Objects to Evidence.
The afternoon session was given over to the offering as evidence several newspapers taken from the files of the Library of Congress and which were presented by Henry S. Parsons, chief of the periodical division of the Library. Representative Reid objected frequently to their admission on the ground, first, that all except one paper constituted a "gift" to the Library and was not sent there in accordance with the copyright law. He further objected because the newspapers, he declared, did not bear out the statements in the charges that Col. Mitchell's articles were given to the Associated Press, the United Press and several newspapers. Col. Blanton Winship overruled these objections and the court sustained him.

At the conference tomorrow on the question of defense witnesses, efforts will be made to determine to what some of the witnesses will testify. Col. Joseph I. McMullen, assistant trial judge advocate, told the court that if he knew just what the persons asked for by the defense would testify to, the Government may admit some of the statements. He argued in the interests of holding up the length of the trial, and in the case of cabinet officers, he said official records may be obtained without calling the Secretaries as requested.

Wants Official Records.

Representative Reid agreed to this step, but emphasized his desire to have present the official records asked for. Col. McMullen also pointed out that many of the persons asked for are at far distant points, and he thought depositions could be obtained instead. Before agreeing to issuing subpoena for the list of 73 desired witnesses, he declared it would require two or three days of study. "The defense, however, is entitled to anything in reason for his defense," he added.

The 73 witnesses for whom Col. Mitchell today asked summonses include the heads of the departments he so bitterly assailed.

The intrepid aviator, whose military fate now hangs on the decision of the military court before which he has been haled, desires to face in court not only Secretary of War Davis and Secretary of the Navy Wilbur, but Secretary of Agriculture Jardine, Everett Sanders, secretary to President Coolidge, and Dwight Morrow, head of the President's aircraft investigating board. 

Another high-light in the trial today was the statement, under examination, by Lieut. Col. George L. Hicks of Fort Sam Houston, Tex., who made preliminary inquiry into the Mitchell case, that he did not believe Col. Mitchell's attacks had an adverse effect on discipline in the Texas area.

If the court should agree to call all the witnesses desired by the defense, the trial undoubtedly would be drawn out over a very long period of time, and it is believed in considering Mitchell's application this time element may have some weight. 

Col. Mitchell informed the court that he wishes the heads of the military establishment to bring with them numerous documents affecting their administrations of their respective air services and including many state records concerning such matters as the Shenandoah's ill-fated Western trip, the MacMillan Arctic expedition and the Hawaiian flight maneuvers.

Prominent among other witnesses whom Mitchell wishes to have testify are Capt. Anton Heinen, noted dirigible expert, who has made charges concerning the management of the Shenandoah, and Mrs. Zachary Landsdown, widow of the Shenandoah's commander. 

It became apparent today that the defense intends to attempt carry out its contention that all of Mitchell's striking assertions alleging "almost treasonable administration" of the Air Service could and would be substantiated as facts.

The list of witnesses submitted to the court run the gamut of every one in any way involved in Mitchell's verbal attacks. These attacks centered around such expeditions as that of the Shenandoah, the MacMillan party and the Pacific Coast flight.

The papers requested would tend to prove or disprove most of Mitchell's charges contained in his two San Antonio statements of Last September, including charges that there were an insufficient number of rescue ships strung across the Pacific for the Hawaiian flight, that the recent fleet maneuvers in the Pacific constituted a "joy ride" and charges that the MacMillan expedition was sent out in an unprepared conditions.

The accused would have the Government furnish a military intelligence reports on the size of Great Britain's air force in 1919, and also a copy of a British "aerial year book and who's who" for 1920, said to be on file at the War Deartment.

The circumstances leading up to the formation of the President's Air Board would be thoroughly gone into if Mitchell's suggestions meet with approval. White House correspondence concerning the Air Board would be introduced as evidence by Secretary Sanders and Dwight Morrow.

The trial today made but little headway during the morning session. The prosecution put on its first witness, A. H. Yeager, a reporter for the San Antonio Light, who was questioned thoroughly regarding the statements of September 5 and 9 handed to him by Col. Mitchell. Efforts of the judge advocate to have incorporated in the record documents which he contended were Mitchell's original statements led to a prolonged debate between counsel over their admissibility. Mr. Reid strenuously objected to the offering of anything but Mitchell's original typewritten statements, whereas Col. Moreland for the prosecution insisted on demanding that the statements, which were embellished with numerous penciled notations, be accepted by the court, explaining that the notations which were added by newspaper editors and printers during process of publication could be overlooked by the court. The matter finally was settled by the court when it agreed to accept the documents with the understanding that the additions would be disregarded.

The second witness called by the prosecution made a statement, which appeared to be somewhat favorable to Mitchell, rather than incriminatory. In response to cross-questioning by the defense Col. George L. Hicks of Fort Sam Houston, Tex., told the court with some hesitation that he did not think that the issuance by Col. Mitchell of the San Antonio statements affected the discipline of his command. The admission came after Col. Moreland had endeavored to interpose an objection to the question. The court then recessed until 2 o'clock.

Yeager identified himself as a reporter for the San Antonio Light. His testimony was drawn out by constant questioning on the part of the trial judge advocate. He was called upon to point out Col. Mitchell in the courtroom as the person who, on September 5 last, handed to him the now famous statement assailing the War and Navy Departments.

The witness testified that he had known Col. Mitchell ever since the latter had become air officer of the 8th Corps Area, and said that he appeared at Mitchell's office on the date specified to obtain "a statement for which I had asked Col. Mitchell.

At this point Col. Moreland quizzed the witness regarding his connections with the Associated Press and Universal Service. Yeager said that he was not personally representing either the Associated Press or the Universal Service when he appeared for the Mitchell statement, and explained that he had merely turned the document over to his own paper, which was affiliated with the press associations. He said that two other reporters and an assistant to Col. Mitchell were in the room when the statement was given out, copies of it being also handed to the other reporters.

In response to questions by the prosecution, Yeager said that the statement was given to him for purposes of publication.

Produces Original.

Col. Moreland requested the witness to produce the original statement. Yeager handed to the judge advocate a thick bunch of papers comprising typed sheets of paper on which yellow paper had been pasted and which was replete with penciled notations. Representative Reid immediately objected to the admission of such evidence, because of the interlineations and its "pasted-up" condition. The judge advocate admitted that there were "marks in pencil" on the document, and explained that the copy had been used by editors, printers and other newspaper employes in putting it into shape for publication.

The witness identified most of the marks, saying that some of the notations were those of the managing editor requesting the composing room to return the copy to him after the linotype operators had finished with it, and explaining that other marks and words were "subheads" and printers' notations.

Counsel for the accused continued to object in vigorous language to the admission of anything but the original statement handed to Yeager by Col. Mitchell. Col. Winship, court law officer, then asked the judge advocate if it would not be possible to erase all of the penciled notations, and inquired of Representative Reid if he would have any objections to the statement thus treated.

Moreland Opens Case.

Immediately on the convening of court Col. Moreland rose to present his opening statement for the prosecution. "I want to point out to the court," he said, "a few of the outstanding statements in the articles which the accused is alleged to have made as contained in the charges and specifications as read."

The first statement taken up was issued September 5 and dealt with the accidents to the Shenandoah and the PN-9 No. 1, which declared they were the "direct result of incompetence, criminal negligence and almost treasonable administration of the national defense by the War and Navy departments." The statement which Col. Moreland read from, charged that airmen "were merely pawns" in the hands of the Army and Navy and further declared that Congress is treated by these two departments as an institution created for their own benefit.

Col. Moreland picked out extracts here and there and the next subject he gook up concerned the PN-9 flight which the accused had be-littled and had declared would have meant nothing even if successfully completed. The statement attacked the Navy for "smashing Lieut. Wade's plane in the North Atlantic."

Disgust Charge Read.

Another extract read by Col. Moreland declared the airmen were "utterly disgusted" with the conduct of military aviation, and that they "don't dare open their mouths for they and their families will be booted out" into some obscure place. The statement also declared the bureaucracies were deluding the public and "wasting the lives of its men." 

The prosecution then took up the statement of September 9, in which Col. Mitchell declared, "What I've said about the national defense hurts the bureaucrats in Washington," adding that "it ought to."

The next statement challenged the War Department to take disciplinary proceeding in which the following words were used: "If the department doesn't like the statement I made let them take any disciplinary action they see fit according to their judgment--court-martial or no court-martial." Col. Mitchell had added to this that "there will be no defense on my part." 

Another extract read declared "it doesn't make any difference whether I am in the Army or not. If they want to throw me out they have the machinery to do it. In or out, our hand is to the plow."

Calls Statements Outstanding.

"Those are some of the outstanding statements to which the court's attention is directed," said Col. Moreland. "The Government doesn't limit its statement to that, however."

Representative Reid interrupted and asked the court why Col. Moreland should limit his opening statements to a few extracts when the regulations required that the gist of the offense must be given at that time.

He said under the arrangement the trial judge advocate had adopted he would have to defend the entire statement, instead of parts here and there on which Col. Moreland bases his prosecution. The chief civilian counsel then moved for a dismissal of the case on the ground that the opening statement of the trial judge advocate "was not sufficient and according to procedure."

Col. Moreland replied in objecting to the statement that "this is another attempt to get a bill of particulars. The Government bases its case on these two statements, and I propose to prove the issuance and publication of them."

Col. Blanton Winship, the law member of the court, politely but firmly reproved defense counsel for its many objections on technical grounds. "Technicalities in law in courts-martial cannot be carried out to the extent they are in civil cases," he said. "If the charges and specifications were not as stated, it would have been unfair to the accused to have one or two statements pointed out and stand alone. The whole articles give a meaning and context to the extracted statements.

Motion is Overruled.

"It is my opinion, therefore, Mr. President, that the articles in the specifications stand as they are and that the judge advocate be not called upon for further information. I recommend the motion of defense counsel be overruled."

The court sustained Col. Winship's opinion.

Col. Moreland then called the first witness for the prosecution, A. H. Yeager, a newspaper man, to whom Col. Mitchell gave his statement for publication. Representative Reid at this point said: "If the court please, I withhold my opening argument until the prosecution has finished its case."

Representative Reid replied that he insisted on his objection on the grounds that the document in question was not physically nor word for word the same as that contained in the specifications against Mitchell.

The discussion over the admissability of the papers grew heated, with Col. Moreland insisting that he was within his rights in offering the papers and Reid just as strongly defending his objections to them. The law officer broke in to explain to the judge advocate that the defense apparently objected to the additions' as possibly bearing on the judgment of the case by the court. Col. Moreland then asked the witness to erase all pencil marks, but Representative Reid refused to be satisfied, and the controversy ended for the time being when Col. Winship suggested that the matter be left to the judge advocate, and that if he cared to have the erasures made and resubmit the papers the court could then formally pass upon Reid's objection.

Second Statement Given.

The judge advocate then questioned the witness regarding Col. Mitchell's subsequent statement, issued for publication on September 9, when the reverberations made by his earlier verbal bomb still were echoing. Yeager said that Col. Mitchell personally handed to him and to two other reporters a typewritten statement and said he did not recall what Mitchell said at the time. The statement, he added, was published.

There ensued another long period of bickerings between counsel when the judge advocate sought to have introduced as evidence a page from the San Antonio Light of September 9 containing a story about the subsequent Mitchell statement and quoting therefrom. Representative Reid said he objected to the introduction of a copy of a statement, holding that the originals would be the best evidence. Col. Winship apparently sided with the defense in this contention, explaining to Col. Moreland that the newspaper article, in view of the context, might affect the case of the client before the court.

Gen. Howze then proposed that the witness read the statement as given to him by Col. Mitchell and thus have it incorporated in the record. Representative Reid jumped to his feet and caustically attacked this suggestion, saying "that is a most remarkable statement to come from the president of this court." Reid argued that the mere reading of what constituted the second Mitchell statement would not serve in place of the actual statement, and defended his numerous objections on the ground that he desired only to protect the rights of his client.