Appeal at Trenton

For the past four months, stolid Bruno Richard Hauptmann has sat in the death house of the New Jersey State Prison at Trenton. Convicted of murdering Charles Augustus Lindbergh Jr., the German carpenter from The Bronx has busied himself writing his autobiography. Twenty-three times has he been visited by his loyal, horse-faced wife Anna, who, affecting more modish dress since the Flemington trial, has traveled 6,000 miles, collected $8,300 for her husband's defense. Towheaded Baby Mannfried, an occasional visitor to his father's cell in Flemington, has not been admitted to the death house. Hauptmann's chief counsel has seen his client on an average of once a week. Since the trial, Attorney C. Lloyd Fisher of Flemington has assumed command of the defense staff in place of beefy, bumbling Edward J. Reilly of Brooklyn, who is now suing Hauptmann for a $25,000 fee. In the meantime Prisoner Hauptmann, never a churchman, has acquired a "spiritual adviser" in the person of one Rev. D. G. Werner from Manhattan. Under the calming influence of this Lutheran divine, Bruno Richard Hauptmann has seen four of his fellow prisoners go to death in the electric chair, the fate to which he was sentenced by a Justice of the State's Supreme Court (TIME, Feb. 25).

To cheat the chair of their client, last week at Trenton Counsel Fisher & associates sought a new trial from the New Jersey Court of Errors & Appeals. Also on hand was Attorney General David T. Wilentz, the man who did more than any other to convict Hauptmann. In marked contrast to the scene at the trial court with its fetid air, crowded benches, hustling newsmen, was the great, placid, colonial chamber of the Court of Errors & Appeals, whose floor is carpeted in rich burgundy red, whose walls are filled with great legal tomes, whose broad windows look out upon the Delaware River. No one was admitted except those on official business, even Mrs. Hauptmann and Spiritual Adviser Werner being turned away by vigilant troopers. Before each of the 14 Justices, five of whom are lay members of the Court, lay the record of a fabulous murder case.

Of the 16 arguments the defense used to wedge a loophole through which Hauptmann might escape the death penalty, five were outstanding. It was argued that Hauptmann had been deprived of his constitutional rights when Justice Thomas W. Trenchard had admitted the kidnap ladder in evidence at the trial. Also cited was his "misleading" charge to the jury. The defense contended that Prosecutor Wilentz had improperly switched during the trial from the assumption that Hauptmann had killed the child by dropping it outside the house to the theory that he had killed the child in its crib with a chisel. Particularly was Prosecutor Wilentz scored for his "intemperate" summation in which he branded Hauptmann as "an animal" and "Public Enemy No. 1 of the World."

Whether Hauptmann was guilty or innocent was no concern of the Court of Errors & Appeals. What the 14 justices wanted to know was whether the strict letter of the law had been carried out in his trial. The defense had devised an ingenious technicality to prove that it had not. Since New Jersey provided a light penalty for kidnapping at the time of the crime, Hauptmann was indicted for murder accompanying a felony, i.e., the theft of the baby's sleeping garment. The defense now argued that under New Jersey law the theft of anything valued at less than $20 is a misdemeanor, that homicide accompanying a misdemeanor is not punishable by death. Since the sleeping garment was obviously worth far less than $20, Hauptmann had been illegally sentenced to electrocution.

This neat exercise in legal hair-splitting caught the prosecution at a disadvantage. Its protest was that "breaking and entering" showed clear "intent" at a felony, that the State had proved by the ransom notes, by the wood in the ladder, by the mud on the nursery windowsill that Hauptmann broke and entered the Lindbergh home. From their ironic questions, however, it appeared that not all the 14 justices were so confounded by the defense pleas as was the prosecution.

When the defense asked how it was possible that a man could "climb up a ladder in a 35-mile wind, open a closed shutter and window and carry a child down the ladder," one imperturbable jurist remarked: "Isn't agility a variable matter?"

When the defense suggested that Hauptmann "didn't steal the child's suit if he intended returning it," another justice inquired: "Returning it so a father and mother could identify it?"

And when the defense argued that "nobody would climb a ladder and enter a house for the purpose of stealing a sleeping suit." a third justice observed: "It was productive of the collection of $50,000 [ransom], wasn't it?"

On the basis of the Court's pointed interrogations of the defense, some observers left the chamber believing that the defense had better plan to push its appeal onward toward the State Court of Pardons and the U. S. Supreme Court. Prisoner Hauptmann, told that the high court would not hand down a ruling on his case until autumn, set himself to prayers.

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