United States v. Marrin

• Decision Date: 03 March 1908
• Docket Number: 44-46.
• Parties: UNITED STATES v. MARRIN et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

159 F. 767

UNITED STATES v. MARRIN et al.

Nos. 44-46.

United States District Court, E.D. Pennsylvania.

March 3, 1908

J Whitaker Thompson and John C. Swartley, for the United States.

V Gilpin Robinson and John Creth Marsh, for defendant.

HOLLAND District Judge.

In this case, in due time after verdict, the defendant filed motions in arrest of judgment and for a new trial. Neither of the six reasons set forth in arrest of judgment raises any question which the court can consider on this motion. Both questions variously stated, to wit, a failure of proof and a variance between the allegata and probata, are questions properly raised by a motion for a new trial. After verdict, a judgment will only be arrested for matter appearing on any part of the record which would render the judgment erroneous, if given. The rule in civil cases 'that the matter alleged in arrest of judgment must be such as would upon demurrer have been sufficient to overturn the action or plea' is the same and applicable in criminal cases. Wharton's Criminal Pleading & Practice (8th Ed.) Sec. 759; Sadler's Criminal Procedure, Sec. 516. The indictment and record of the trial can alone be considered and the evidence is no part of the record for the purposes of passing upon a motion in arrest of judgment. Commonwealth v. Gurley, 45 Pa. 392; Commonwealth v. Kammerdiner, 165 Pa. 222, 30 A. 929; Commonwealth v. Newcomer, 49 Pa. 478. Thus the motion will be sustained when it appears from the record that the court is without jurisdiction, or that the act of Assembly on which the indictment is framed is unconstitutional, or that the indictment is insufficient, but not when a support of the reasons depends upon a reference to the evidence adduced. Such objections can only be raised on a motion for a new trial, and as they are involved in the reasons set up in this motion, we will pass to the consideration of the motion and reasons for a new trial. They are 61 in number, but they will be considered as summarized by counsel for the defendant at the argument.

First. 'The newspaper accounts of the trial, as published in the North American, and read by the jury, were so unfair, distorted, and biased in favor of the government as to prejudice the defendant and deprive him of a fair trial. ' On the morning of September 23, 1907, the trial began, and the copies of the North American containing the offending matter were published and issued on the 23d, 24th, 25th, 26th, 27th, 28th, and 30th of September and the 1st, 2d, and 3d days of October. On the morning of the latter date, counsel for the defendant made a motion for the withdrawal of a juror, for the reasons above stated. The reports of the trial complained of, to say the least, were highly improper. They were calculated to hold the defendant up to contempt and create a prejudice in the mind of any person in whose hands a copy containing them might fall. They were not only highly sensational, but material portions of the evidence were distorted and some of the statements without foundation in fact. Reference is made to the fact that Marrin fled. This is repeated over and over again. The witnesses who testified narrated the same story in court that they had to the North American two years before. Great prominence was given to illustrations evidently intended to belittle the defendant and put him in a mean light before the jury and in the community. These illustrations were accompanied with comments representing the defendant as hardened and indifferent to the sufferings of the people who had been defrauded by him and his associates. The articles made repeated references to Francis as convicted of a similar offense and sentenced to the penitentiary, and the unqualified assertion is made that the defendant was joined with him in the scheme to defraud, set forth in the case of trial and in others. Reference is frequently made to Francis being brought from the penitentiary to testify. Illustrations show Francis and Marrin in conference, with special and prominent reference to them as 'Partners Francis and Marrin conferring.' He is connected with a number of other alleged swindlers and criminals, who it is said had been engaged in similar enterprises. He is charged with being a fugitive from justice, living in Paris in luxury with money received from the Storey Cotton Company. His demeanor in court and his manner upon the stand and his testimony are spoken of in a contemptuous way. The witnesses called by him are said to be of bad character and unreliable; they are discredited by disparaging insinuations, in such statements as that 'bartenders, bank cashiers, waiters, and rounders of many types were included in the collection of alibi witnesses called for the defense.'

Following are some of the statements complained of:

'Marrin's trial comes directly as the consequence of charges made by the North American in the winter and spring of 1905 against the collection of swindlers, the chief of which was the Storey Cotton Company, and their nest, the Philadelphia Consolidated Stock Exchange, otherwise known as the 'Con Stock Exchange.' The revelations made by this newspaper were made daily for more than a month. At first the conspirators tried to brazen out the storm, their main refuge being in outcries against 'sensational journalism.' Finally Marrin fled, a receiver was appointed for the fraud, and the house of cards tumbled down upon the dupes who had builded it. Postal Inspector Dixon was removed as a result of the scandal which developed when a check made to him was found among the papers of the defunct company.

'Other Swindles Smashed.

'The North American having set the United States authorities on the trail of the Storey Cotton Company swindlers then turned its guns on the Provident Investment Bureau, and speedily closed up that swindle. Stanley Francis, its head, who was one of the principals in the Storey Cotton Company fraud, was caught, and after a desperate fight convicted and sentenced by Judge Holland to five years' imprisonment. The Supreme Court took a year from his sentence on the ground that the defendant had not been tried properly on one of the five charges against him. The North American then smashed the Haight & Freese bucket shop, and caused the 'Con' stock exchange to be banished from its quarters in the Bourse. Marrin was a fugitive for more than a year. He fled to Europe, where, with F. Ewart Storey and Thomas H. Quinlin and Sophie Beck, the woman head of the concern, and other members of the concern, he lived in luxury. He returned to this country and was arrested by Chief Postal Inspector Cortelyou in the Hotel Genessee, Buffalo, last November. Marrin was held under $25,000 bail by United States Commissioner Keating of Buffalo, but this was afterwards reduced to $10,000 by Judge McPherson.'

On Wednesday, September 25, 1907, the headlines were as follows:

'Marrin's Letters to Storey Dupes Read to the Jury.

'Glittering Promises that Built up Swindle.

'New Alias Found.

'The Defendant Ran Branch Office as 'Stewart' is Sworn.

'Francis to Testify.

'Convict Will be Taken from the Penitentiary to Court.

'Seen at the Marrin Trial.

'Frank C. Marrin alias Stone, alias Harper, alias Stewart, wears a studied expression of bored indifference most of the time. Professor Thompson acted as the 'Judas' sheep for the herd of dupes-- in New Jersey whom he led to the Storey Cotton Company's shambles. He will probably tell to the jury to-day the same shameful story he told to the North American more than two years ago. * * * Pathetic and realistic was the picture of despair and poverty made by the victims of the smashed swindle as they sat beside a long table, inside the bar enclosure, and selected from a heap of correspondence lying letters that had been received from the headquarters of the Storey Cotton Company. Irving S. Miller, a one-armed watchman, was one of these searchers. His grizzled head was held low to the table, while he held, one after the other, the envelopes in his teeth and took from them with his remaining hand the letters that had lured him to give his hard-earned savings to the swindlers. * * * He had put by $1,300 to provide for the needs of himself and his family in his old age. This money was swept away, before Marrin, Sophie Beck, and the rest of the gang fled to Paris where they lived in luxury. Stanley Francis was brought from his cell in the Eastern Penitentiary to confer with Marrin and defendant's counsel. * * * Francis is evidently well supplied with money. He was fashionably dressed.'

Stanley Francis, who at the time of the trial, was serving a sentence in the Eastern Penitentiary, did not appear as a witness in the case.

On October 2d the following appeared:

'Storey Cotton Co. Victims Helped Marrin Cut Big Dash at Races.

'Bet $30,000 at Once While Lambs were Being Sheared.

'Woman Warned.

'Witness for defense admits she told him to beware of Farrel. * * *

'Farrel of the many aliases, also told of this big bet and of others almost as large. He told also the names of the race horses owned by Marrin during this period. One of these was Lightning Tom, presumably named after Marrin's brother 'Tom,' said to be the fastest telegrapher in the country and the owner of the noted 'Marrin Pirate' wire, which supplies bucket shops and pool rooms throughout the country with quotations and race results. Others were Mollie Donohue, Daffy Down Dilly, and a score of others with names equally eccentric. Edward Marrin and Farrel testified that the Thomas Harper who posed as treasurer of the Storey swindle was 'Pat' Kearns, Marrin's brother-in-law. Bartenders, bank cashiers, waiters, and rounders of many types were included in the collection of alibi...