Two Old Men

Five years after the act "contra bonos mores" was committed, two and a half years after the first indictments were made, two old men went on criminal trial in the District of Columbia Supreme Court last week. They are charged with a conspiracy to defraud the Government in the leasing of the Elk Hills Naval Oil Reserve in California. Everyone has seen their names and their pictures; they both have drooping, pale grey mustaches; they both look as harmless and as worn-out as 70-year-old, double-entry bookkeepers. Their romance has had its fling; their future remains an inglorious struggle.

Albert Bacon Fall, 65, had the more startling career and faces the more dismal future. From a cattle prospector he rose to be Secretary of the Interior under President Harding. Born in Kentucky, he spent most of his youth in the saddle in the territory of New Mexico. Then he plunged into law and politics. Reward came. He was elected the first U. S. Senator from New Mexico. Senator Fall, weighing 180 pounds,* wearing a wide-brimmed hat of the southwest, was popular in a frontierish sort of way. Most important was his friendship with that unimpressive, loyal group of which Senator Harding was one. Mr. Fall's hopes grew big when Friend Harding was elected President--perhaps he would be appointed Secretary of State, perhaps merely Secretary of the Interior.

Three months after the inauguration, President Harding transferred the Navy oil reserves from the Navy Department back to the Department of the Interior./- Then, as later Senate investigations revealed, Secretary Fall received a mysterious "loan" of $100,000 on Nov. 3, 1921, from Edward L. Doheny, potent head of the Mexican Petroleum Co. The money was delivered to Secretary Fall in cash in a satchel by Mr. Doheny's son. With it Secretary Fall purchased the finest ranch in New Mexico. On Dec. 11, 1922, Mr. Doheny's company leased the Elk Hills oil reserve from the Government. On March 4, 1923, Secretary Fall resigned his Cabinet post.

A Senate investigating committee, headed by Senator Thomas J. Walsh of Montana, tried to find the wherefore of the "loan" and the leases. It was not even sure of the source of the $100,000. Suddenly, on Jan. 24, 1924, Mr. Doheny voluntarily appeared before Senator Walsh and explained that the "loan" was his. Said he: "This loan had no relation to any of the subsequent transactions. ... The reason for my making, and Mr. Fall's accepting, the loan was that we had been friends for more than 30 years."

Edward L. Doheny, 70, is an opportunist and a pioneer. Born in Wisconsin he hunted gold in California. He found some, but at 36 he found himself nearly penniless in Los Angeles. So he discovered oil near that city, rose again and fell again financially. Then he got himself a horse and set out to explore Mexico. Rich oil fields met his eye; he organized the Mexican Petroleum Co. Now, he has accumulated a fortune of some $100,000,000. Perhaps, he regards his Elk Hills leases as Doheny was a bribe, or at least just another successful bit of pio neering.

The Contentions. The Government, represented by onetime (1911-23) Senator Atlee Pomerene and Attorney Owen J. Roberts, contends that Secretary Fall induced President Harding to turn the oil reserves over to his Department; that the $100,000 cash which he received from Mr. a gift, in return for which he (Fall) leased public lands to Mr. Doheny for exploitation; hence, both Mr. Fall and Mr. Doheny are guilty of conspiracy to defraud the Government.

The defense, headed by shrewd Lawyer Frank J. Hogan, contends: 1) That the Elk Hills leases were both a profitable and a patriotic move for the Government, because in return for them the Doheny interests built an oil reserve plant for the U. S. at Pearl Harbor, Hawaii;* 2) That the entire transaction was urged and approved by onetime (1921-24) Secretary of the Navy Edwin Denby; 3) That Secretary Fall had only wanted to serve in President Harding's Cabinet for one year as "the capstone of his public career," and that he stayed a second year because the President urged him; 4) That the $100,000 loan was merely a personal good-turn between two old friends.

The Trial. The jury which hopes either to convict or to clear Messrs. Fall and Doheny before Christmas is composed of typically average U. S. citizens--a steamfitter, an artist, a cigar store clerk, an expressman, etc. Most of them, when asked if they knew anything about the oil scandal, said, "Yes, we have noticed it in the headlines, but never looked into it deeply enough to form any definite opinions."

The first clash between the Government attorneys and the defense came when Mr. Roberts asked that the twelve jurors be kept under guard during the entire time of the trial. Said he: "We make this motion because of the tremendous importance of the case . . . and because it is first a charge of improper use of money, which amounts to bribery . . . and that no carping criticism and no breath of suspicion can be said, rightly or wrongly, to have interfered with the proper functioning of the machinery of justice in this case."

Immediately, Mr. Hogan was on his feet, shouting a violent protest, saying that Mr. Roberts had insulted the defense, reprimanding him for using the word "bribery" before the trial had begun. Nevertheless, presiding Judge Adolph A. Hoehling granted Mr. Roberts' motion after 20 minutes' cogitation, thereby giving the prosecution its first victory. So the jury was "locked up" in a stuffy courthouse dormitory which had only one washstand. On Thanksgiving Day they marched, two by two, under guard, to a turkey dinner.

The second major clash in the trial came when the defense objected to the use of the Senate records as evidence. If this protest had been granted, the Government's case against Messrs. Fall and Doheny would have been ripped into vague shreds. The testimony of Mr. Doheny, before Senator Walsh's investigating committee, that he had "loaned" Mr. Fall $100,000 would have been of no use to the prosecution, and the two years' labors of the Senate would have been legally fruitless. Judge Hoehling announced, after four days' consideration, that the defense's objection would not be granted, that anyone who voluntarily gives evidence to a Congressional committee is not immune from prosecution. So the Government entered the second week of the trial with the vital points of its case intact, with a host of Senators, Cabinet members, bankers, publishers having said much and preparing to say more.

*Now he weighs 140 pounds. fOne of the last acts of the Wilson Administration was the putting of these lands under the control of the Secretary of the Navy. *According to Mr. Hogan, Japan was threatening to attack Hawaii in 1921, and hence the Doheny oil storage plant was a valuable item in naval defense. Last week, word came from Tokyo that Japanese statesmen were vexed at being made the "goats" of the Fall-Doheny defense.