The Film Daily (1935)

THE J^^s DAILY Thursday, Oct. 24, 1935 ST. LOUIS WITNESSES RE-EXAMINED BY GOV'T (Continued from Page 1) bondholders' protective committee, to the witness stand for the purpose of again questioning them concerning certain portions of their previous testimony that the court had ruled should apply to only some of the defendants. This re-direct examination was with the end in view of having such testimony go into the record applying with equal force and effect against all of the defendants, both individual and corporate. After considerable argument between counsel, Hardy finally offered Arthur and Dysart for cross-examination by counsel for those defendants who had waived cross-examination when these witnesses originally testified. In each instance defendant's counsel declined to crossexamine and raised legal objections to the government's offer. These objetions were overruled. A motion by William R. Gentry of Paramount counsel for a mistrial likewise was rejected by Judge Moore. Hardy then made a motion that the testimony of Arthur and Dysart should now be accepted as against all of the defendants with the restriction, however, that Arthur's alleged conversations with Cresson Smith and Jules Levy should apply only against RKO and Depinet and his alleged conversation with Neil Agnew against only the Paramount defendants and George J. Schaefer. This motion was allowed by Judge Moore over objection of defendant counsel. Certain documentary evidence will also be broadened to apply to all defendants. When Hardy announced "the Government rests", Jacob M. Lashly of counsel for RKO and Depinet presented formal motions to the court asking for a directed verdict of acquittal for each of these defendants and also a motion for dismissal of the indictment so that they cannot be placed in jeopardy again on the same charge. Similar motions will be filed by attorneys for the other defendants when court reconvenes at 2 P. M. today. The continuance of the trial to that time was taken to permit both defendant and government attorneys to prepare for the legal arguments for and against these motions. The jury has been excused until 10 a.m. Friday so that all of this afternoon can be devoted to the arguments on the motions. Motion for Directed Verdict The motion of Ned E. Depinet for a directed verdict of "not guilty" read as follows: "Comes now the defendant, Ned E. Depinet, at the close of all the evidence introduced on the part of and on behalf of the government and moves the court to direct the jury that under the law and in the said evidence the said NEWS of the DAY Stamford, Conn. — Warners' "A Midsummer Night's Dream" opens at the Stamford Theater on Nov. 13 for a special limited engagement of three performances — two evening and one matinee. It will be shown at roadshow prices with seats sold on reserved basis. Seattle — Lloyd Thayer has been appointed to manage the New Bijou in Aberdeen and the New Hoquiam in Hoquiam, both recently acquired by Warners. St. Paul — R. H. Ray, president of Ray-Bell Films, Inc., has arranged with RCA Photophone for the purchase of one of the newly developed optical reduction printers for making 16-millimeter prints from 35millimeter negatives. With the addition of the new RCA optical reduction printer, the Ray-Bell studio and laboratory facilities become among the most complete in the middlewest. San Antonio — The Strand has remodeled and enlarged its lobby and changed its name to the Prince. Rosen Starting First Play Al Rosen starts rehearsals of his initial play, "One Good Year," on Monday. George Rosner is directing. Seattle — "She Married Her Boss" has started its fifth week at the Liberty here. Sioux City, la.— The $45,000 rebu.lding program on the Vermilion, S. Dak., city theater has been abandoned, due to disapproval of the PWA application. defendant Ned E. Depinet is not guilty as charged under the indictment in this case." The wording of the RKO Distributing Corp. motion is identical except for the change in the defendant's name. The grounds given for dismissal of the indictment and proceedings thereunder against Depinet and RKO are: first, the indictment is insufficient to constitute any charge or offense in this jurisdiction or in any jurisdiction; second, the charges are so vague, indefinite and uncertain as to be insufficient to inform these defendants of the charges against them with sufficient particularity of what they are to meet and answer and that such charges as to them are mere conclusions; third, the testimony is insufficient to establish a prima facie case warranting submission to the jury fourth, the evidence fails to establish any unlawful conspiracy; fifth, the evidence fails to establish a prima facie case or any case proving or tending to prove that any acts of the defendants were in pursuance of an unlawful conspiracy; sixth, the evidence fails to prove they entered into an unlawful conspiracy formed or engaged in by other persons; seventh, the evidence fails to establish or prove the doing of acts for the purpose of effectuating an unlawful conspiracy upon the part of any other persons; eighth, the evidence fails to establish that they did any act or acts or combined or conspired to do any act or acts for the purpose, or having the direct and necessary effect of restraining interstate trade and commerce in motion picture films for use at the Ambassador, Missouri and New Grand Central theaters, and ninth, that under the evidence, the indictment herein and the law, the jury should be preemptorily instructed to find those defendants and each of them not guilty. The motion was signed by William J. Donovan, George S. Leisure and Jacob M. Lashly, attorneys for RKO Distributing and Ned E. Depinet. Reed Opposing Recall When Judge Moore announced his decision that he would permit Hardy to recall Arthur and Dysart, former Senator James A. Reed on behalf of all the Warner defendants voiced his exception to this ruling by the court. He contended that the government had not made a formal application to reopen the case but was now attempting to put back on the stand a witness who had previously fully testified after it had closed its case. He contended that it would be impossible to reopen the case in the same situation it would have been if the ruling were made at the time the witnesses originally testified. He argued the proceedings were without legal precedent and a clear invasion of the rights of the defendants denying them due process of law and therefore violative of their rights under the fifth and fourteenth amendments to the Constitution of the United States. William R. Gentry, for Paramount defendants, and Jacob M. Lashly, for RKO, joined these objections and elaborated thereon. Lashly read court rulings that the question of whether any conspiracy had been shown by the evidence is a question for the jury to determine, and that the court had been absolutely right in the rulings Hardy now wanted reversed. Judge Moore responded that the court had no thought that it was in error in its prior rulings or at any time in the trial, but that it rests within the discretion of the court whether the tesimony shall be broadened and that he was within his discretionary powers in permitting the recall of Arthur and Dysart. He said he expected to afford the various defendants cross-examination to the fullest extent. When Arthur took the stand the defendant counsel again repeated their prior objections, and later SCHENCK CONFIRMS SIGNING LIGHTMAN (Continued from Page 1) valuable addition to our present organization. He does not join us to replace any member of our staff." Lichtman late last night said that he will assume his new duties on Nov. 18 and described them as general in nature. He said he plans to take a trip either to Bermuda or California, leaving New York late this week. Educational Starting Three Work will be started this morning at the Biograph Studios on a group of three single reel subjects for Educational. "Seeing Nelly Home" will feature the Master Singers, a group of 16 singers headed by Charles Henderson, and each one a soloist on the NBC networks. The Cabin Kids will appear in the second subject, and the third will be an allgirl college picture featuring Nell Kelly and a number of other girls, without a single male in the cast. Al Goldenberg Buried Al Goldenberg, a member of Local 306 who led the fight which resulted in the admission of permit men into the union, was buried yesterday at Montefiore Cemetery. when Hardy asked him whether he had a conversation with Abel Cary Thomas, Gradwell Sears and Herman Starr in the Warner office in March, 1934, Gentry filed his motion for a mistrial which was overruled. Reed said that this step of reopening the direct examination was without any precedent in law, adding: "It is now manifest that counsel by this trick, and I so pronounce it, is endeavoring to have this witness repeat his testimony which he gave at the beginning of this trial." Hardy objected to the charge his move was a trick and was sustained by Judge Moore. He explained that he proposed to re-ask Arthur and Dysart the very same questions, or substantially so, the answers to which had been restricted in their application as against various defendants. During the arguments Frederick H. Wood of Warner counsel said: "Arthur was the opening gun of the government's case and now they are making him the parting salute." He argued that numerous courts had ruled that the words and even the acts of one defendant could not be used against other defendants not participating to establish the existence of a conspiracy against those not present, but Judge Moore stood firm on his ruling that the witnesses could be used again.