The San Francisco Call. Newspaper, February 11, 1897, Page 8

= 8 THE SAN FRANCISCO CALL, THURSDAY, FEBRUARY 11, 1897 ERRORS IN THE PRINTS Cooney’s Defense Reveals Conflicts Between the Types. CROCEKER BLANKS NOT ALL THE SAME. More Than a Hundred Weak Spots in the Prosecu- tion’s Case. GLASSES AND RULES SHOW DISCREPANCIES, Attorney Reddy Shows That the State Has Failed to Establish Its Main Points. Yesterday was an eventful day in the | trial of J. J. Cooney, charged with perjury in certifying that he took the late James | G. Fair’s acknowledgment to one of the most important deeds in the litigation vver the Fair miilions. The defense put in more than a hun- | dred strong reasons going to show that | the Crocker blanks offered by the prose- | cution as evidence of fraud are not the same as the blanks used by Notary Cooney | in taking the Fair acknowledzment. Be- fore this point was argued in detail there were some preliminary proceedings of minor consequence relative to the identi- fication of important exhibits in the case. Judge Cook called Henry P. Smith and Theodore Kitka to the stand the first thing yesterday morning and had tnem identify the photographic exhibits which they took a few days ago for the prosecu tion and defense. The negatives and | proots were marked by the court for iden- tification. After the identifications were concludea Attorney Reddy filed the motion: “Counsel for the defendantnow move | the court to discharge the adefendant on the following grounds: “First—It does not appear that & public offense has been committed; and, second, | there is not suflicient cause to believe the defendant guilty.” Mr. Reddy at once began an elaborate | argument in support of the motion. He began by arraiening Captain Lees and his assistants for the zealous attitude they had taken in hunting evidence 1o substantiate | private interests and claims, stating that | the prosecution of Cooney was merely a side issue, undertaken for the purpose of destroying the value of his testimony to be given at a future time in the litigation over the late Senator’s millions. I cite to your Honor,” he said, “the well-known case of the People ajainst Wells, in which the Supreme Court of this State dealt with the question of what elements go to make a conviction of per- jury lawful, and I argue by analogy that no case has been made out against the the man they are so eagerly trying to hound to the penitentiary.’’ Mr. Reddy relied largely on the rule which requires the testimony of at least one witness to some material fact before defendants may be convicted in perjury cases. He said that the central factin the Pprosecution’s case was the attempt to prove that James G. Fair did not go to J. J. Cooney’s office on the 27th of Septem- ber, 1894, to acknowledge the pencil deeds. He ‘argued that no witness had come for- ward to testify to that important fact for the people, and that the only evidence even remotaly tending to show the prose- cution’s contention was that the certifi- cates used by Cooney were not in existence until nearly two years after their alleged date. “This is the ultimate fact in the case,” eaid the speaker, “'and all other facts merely circle about it. But I hold that even this fact loses its value when care- fully scrutinized. There are no allega- tions that the alleged deed in this case was ever delivered to any one, and it is well-known law that if a deed s not de- livered it is worthless and neither injure nor benefit any one. It may be argued that the deed was executed, even if not delivered; but the word executed, usea in this sense, is not general enough to repair the breaks in the prosecution’s case. I made the broad statement that the charges against defendant are immaterial. Most of its recitations are of merely evi- dential facts. All this talk about differ- ent blanks and about a bank meeting amounts to nothing except as evidence feebly tending to show an alibi, but it vio- lates the main rule about alibis, namely, that the alibi must preclude the possibil- ity that defendant was at the place charged. “*So we sift it all down and come to the one fact, the main allegation of their case, which is that Senator Fair did not appear at Cooney’s office on the date charged and that Cooney's certificate is false. “Now, let me remind the court of what is common knowledge to your Honor. I want to say that all the burdens are on the prosecution. They try to overcome the oath of the defendant by certain cir. cumstances. Well, to make their cate they must absolutely overcome the de- fendant’s oath, override the presumption of law that the notary's certificate is correct, and also overcome the strong pre- sumption of the law that the defendant is innocent. They have feebly tried to stag- ger at such proof by two methods. First, they have tried to show by his valet, Clarke, that Fair was not at Cooney’s office, and _they have also tried another method. They have tried to show that certificates of the character used by Cooney did not exist at the time. “Weil, Clarke was a new find for the prosecution and a surprise, but we must remember that if a witness is badly needed the San Francisco detective force requires but little time to discover him. However, Clarke was a harmless wonder in his way, He could remember nothing of any value to us or of any danger to him. In truth his memory extended to notbing except what the prosecution wanted him to re- member. The prosecution declined to produce Clarke's books of memoranda and the presumption arises that the con- tents of those books were prejudicial to the case of the people. I desire to say here and now that if the evidence of such a man as Clarke, if the testimony of a man with such a treacherous memory_is to be of consequence, nobody is safe. - He remembered nothing—did not even recall the death-dealiug attempts of the Senator to kill fishes in the Colorado River by dynamite. “But even if Clarke’s evidence were true he has not accounted for all the time on the day in question. He was in room A and Fair was in room C. A conversa- tion could not be overheard and for two hours the witness could not know whether or not the Senator left the room.” On the point of the Crocker certificates Mr. Reddy argued that no one had sworn what was printed before 1895, The super- following | | they have the temerity to argue tk | name him. | by fraud and hold it in the A Comparison or rwe Two meaomves State of @elifornie, THE SNAGING SHOWS TNE ACTURL B13cRsonmey i s, HEADINGS OF YNE CROCKER AND Coowey sinmns Twaen Tas =\ 7etiTaie oi L3 Judge and Attorneys Comparing the Blanks Against the Light to Discover Discrepancies in the Evidence. intendent could not say positively because know what had been issued before 189: *Counsel do not dare,’”’ he said, “'to af- firm that any witness swore that no such forms were ever printed prior to 1895. If any witness swore this way they will please Yet the prosecution prom- ised to prove positively that no such form was printed prior to 1896. They have made no such proof and can make none. We, on the other hand, can positively show that the blanks are not alike. We | will show that money nas power and that omebody hss suborned perjury. We | have not deceived the public or tried our case in the papers. We can show that millionaires sometimes make their money me way.’’ Ex-Judge Denson followed Mr. Reddy for the defense in an eiaborate argument on the differences between the Cooney cer- tificate and the exhibit numbered 16. “If your Honor will apply a fine rule and measure the printing of the two,” said he, “you will find a variance of 1- of an inch. A careful man has measured the two and has shown more than 100 repancies.” The court’s attention was then called to the fact that the “S” in “State” in the Cooney certificate is square or blunt, while the same thing in the Crocker biank, marked “exhibit 16, is round. The following were some of the points made: The *‘t” in the same word of the cer- tificate is straight, whiie it is crooked in the blank. The second “t” in the word “‘State” of the Crocker blank is solid and complete, while in the Cooney document it is split. “The ‘‘0” in *‘of” is broken differently tban the break in the same letter in the | certificate, The letter “f”’ in blank is almost complete, but it is not in the other. The defense contended that whenever the identity failed in so sub- tantial a way it showed that the docu- ents were not the same. In the word “California” the capital “C” was shown to be at wholiy varying angles. It was shown that, by a fine rule, the variance would be fifteen de- grees. In & similar way it was shown that there were great variations in the letter ‘4" in the word “California.” The letter “'i” in the same-word “Cali- fornia” was shown to have dots of wholly diffarent size. The dotted lines or rules in the two cer- tificates were shown to be of wholly differ- ent lengths. It was shown that the braces in the two certificates were wholly unlike, that in the Crocker blank being heavier and one- tenth of an inch longer than that in the Cooney certificate. In the word “hundred” it was shown that the “r’” was complete in the Crocker exhibit but, partly gone in the Cooney certificate. By superimposition to the light it was shown that the documents failed to agree in many particulars. The case will go on to-day and the at- torneys will devote the forenoon at least to argument. Judge Cook ordered the jury to appear in court for further hear. ing of the case on Friday. CHARGED WITH BURGLARY. Joseph Fisher, an Ex-Convict, Been Wunted Since October. Joseph Fisher, an ex-convict, was booked at the City Prison last night by Detectives Crockett and Wren on the charge of burg- lary. The residence of Mrs. M. L. Harrison, 917 Van Ness zvenue, was entered by burg- lars on the night of October 24 last. The burglars ransacked the house and stole all the silverware. Before leaving they drank & bottle of wine and left the empty bottle, and two glasses on the dinine-room table. Entrance had been effected by forcing open the front door with the aid of a “jimmy.” The burglary was reported to the police, but it was not till Tuesday nigut that Fisher was arrested in his room in a lodg- ing-house on Howard street, between Fifih and Sixth. He was locked up in the ‘‘tanks’ and yesterday he was identitied by different peovle to whom he had sold the silverware. —————— Sailors Released. The seven hands of the sealing schooner Elsie who refused duty some time ago while off this port and were landed and placed under arrest were released on their own recogniz- ance yesterday by United States District Judge Morrow. The complaining witnesses have gone away on voyages and the release was grauted on the ground that there was no prospect of the men being brought to triai for a long time to come, —_—————— Materials for Street Pavements. The Street Committee of the Board of Super- visors has invited tke board of directors of the Merchants’ Association to attend the meeting of the committee this afternoon. A number of the directors of the Merchants’ Association will take part in the deliberations of the com- mittee, & the association is very deeply inter- ested in having all future specifications for strect pavements open to the best materials without any discrimination. — - Not how cheap, but how good for the mon: printor bind. Mysell-Rollins, 22 Clay. : 4 | the proofs were destroyed and he did not | TAXES ON MONEY “of” of the Crocker | BEYOND THE LINE Assessor Siebe Gathered in Thousands of Dollars. Now Some of the Local Banks Sue to Have Their Cash Returned. | Judge Seawell Intimates That General Deposits Abroad Will Have to Be Tax:d Here. Judge Seawell of the Superior Court yesterday handed down an important opinion in the case of the Nevada Bank of San Francisco agamst the City and County of San Francisco wherein it is sought to recover $20,613 06 alleged to have been improperly collected for taxes, inas- much as the Assessor levied taxes on moneys that the bank alleged were de- | posited with correspondents and other banks outside of the State of California. The decision, which overrles the City’s | demurrer to the bank’s complaint, hasa direct bearing on the revenue of the City, for if the theory of the Nevada Bank is right, the cash revenue of the City from taxation of personal property will be di- minished at least $200,000, and the bank- ing institutions of the City will, of course, be benefited to that extent. The full text of Judge Seawell’s decision is as follows: Ido not think that the complaint presents the question aiscussed by counsei in reference to the moneys deposited with piaintiff’s corre- spondents in places outside tne State of Cail- fornia. It is alleged in the complaint that on the first Monday in March, 1896, plaintiff had on deposit_with its correspondents in London, Paris, New York, Bosion and Philadelphis moneys aggregating $1,474,257, “whicn last mentioned sum of money ot the day and year last aforesaid situated wholly without the territorial limits and jurisdiction of the State of California.” It is true that a general depositor in a bank is simply a creditor, and it is also true that in a strictly legal sense such a_person has not any money on deposit at all. The money which he deposited s the property of tae bank, and the relation of the parties is that of debtor and creditor. When the plaintiff alleges that at a certain date it had on deposit with its correspondent in London a certain sum of money, which was then situated wholly outside the State, I am not at liberty to assume, upon a general de- murrer, that plaintiff did not own the money slleged’to be on deposit, or that plainiiff was merely the creditor of the correspondent. The demurrer 0 the complaint will therefore be overruled. For several years it has been noted that on the day the tax levy is made many of the local banks have large amounts of money on deposit beyond the limits of the State. If the theory advanced in this cuit is upheld by the courts ihen all the banks will escape taxation on the moneys thus deposited outside the State. If the City wins the suit the taxes will have to be paid, no matter where the coin is situ- ated. Deputy City Attorney Rhodes Borden has charge of the Gity's end of the litiga- tion, and when apprised of the fact that his demurrer was overruled said that he would at once put in an answer alleging that the aeposits mentioned in the bank’s complaint are general deposits and that as such they must be taxed here. In support of this posit:on Mr. Borden will rely on some of the points set forth 1n h_y brief on the demurrer. Briefly stated, the main point is as follows: Wnen plaintiff deposited its money abroad it Jost all property in the money itseli and 00k instead the promise of the banks outside of the State to honor itsdrafts up to the amount deposited. This promise 10 pay is but a chose in action—an intangible species of property be- longiug to the person who has the right to en- force ivand is taxable as a solvent credit at the domicile of theown r; to wit, here in California. It is not taxable anywhere else. Mr. Borden thought that the City had a right 10 assume, in the absence of any al- legation in the complaint to the contrary. that the deposit was a general deposit, but Juuge Seawell ruled against him on that matter, and testimony must be heard touching the real status of the money. “Iam perfecily satistied that the court is with me in regard to the law, for that appears on the face of the opinion,” said Mr. Borden. *It comes down to'a ques- tion of fact. If those deposits were spe- cial deposits we have no right to tax them we would have to tax a horse that 1s owned by a citizen of San Francisco, but which is in London on the first Monday oi March, when the levy is made. I those deposits are general de- posits, then the bar will not be success- ful in resisting collection of the taxes, for the action of the Assessor will be upheld by the cour *1 speak of this litigation freely and of the phases presented by Judge Seawell's decision because the public is greatly in- terested in the result of the litigation. If it were a private suit it would be alto- gether different.’” The brief on benalf of the City, already on file, gives a clear idea of the City Af- torney’s definition of a special deposit. The repor: of the president of the Ne- vada Bank to the Bank Commissioners | mentioned the identical moneys involved in this suit as “being due from other banks and correspondents.” That will be an important fact on which the City will base its claim, for it has been decided that “whenever the money deposited is mingled with the general funds of the bank it is a general deposit.” Additional comments in the brief are as follows: When the deposit is special, the bank with which it is made has no right to touch or to use the the coin, or even to open the packsge without special 'directions to :hat end by the bailor. Sce Marine Bank vs. Ruckmore, 23 1iL, 463, and Foster vs. Essex Bank, 17 Mus: Even when money is left with & bank merely for safe keeping, unless there isa special un- derstanding that the identical money is to be returned, the deposit is but a general deposit. See Boon on Banking, section 41, and Schoe- maker vs. Henze, 53 Wise, 116. Dozens of cases are in the books to show that a general deposit abroad creating a | debt due to a resident of California is tax- ie here. Attorney T. L Bergin, who represents the Nevada Bank, contends that the de- posits being made abroad for a special purpose, namely, for the purpose of meet- ing drafts made by the plaintiff, they are therefore special deposits in the strict sense of the word, and therefore not tax- able here. Several cases of a similar character are pending in the Superior Court ageregating | & large amount of money, and every tax payer is directly affected by the result. DOGGED BY SPIES. Mrs. Nettie Craven Obliged to Call Upon the Police for Pro- tection. Mrs. Nettie Craven called at police head- quarters on Monday afternoon and intro- duced herself 1o Sergeant John Moffitt, Who is acting as clerk to the Chief. “Is Chief Crowley in?"” asked Mrs. Craven. “No, madam,” replied the sergeant; “he left a fow minutes ago.” e Mrs. Crayen then asked when he would Teturn, and the sergeant told her he did not know. “I want police protection,” said Mrs. Craven. “‘Men are following' me around snd watching my house day and night, and I want to be protecug. There are two men outside now who have followed me here and I want you to arrest them.” il €a0’t do that,”" said the sergeant. ‘That is only a misdemeanor, but I would advise you to apply for a warrant in the Police Court ana then the men could be arrested.” “My attorneys advised me,” said Mrs. Craven, “'to apply here for a permit to a1y a revolver and I want one.’’ The sergeant asked her to fill out the usual application, giving her name and address and the reason why she wanted to carry a revolver and told her that it would ‘be laid before the Police Commis- sioners. Mrs. Craven thought that if she saw the Chiof she could get a permit at once and after a little she left. No application was received for a permit from her up to last night. COMMISSIONERS WOULD NOT SIGN A Railroad Petition Favor- ing the Anti-Scalping Act. Rolla V. Watt Says Restrictions Have Been Put On Endeav- orer Tickets. Raiiroad Commission Declines to Tak Sides Against Ticket Brokers. Watt’s Letter. Commissioners Stanton and LaRue com- prised the ‘“working majority’ and the only members of the State Railroad Com- mission present at a meeting of the com- mission yesterday afternoon. William B. May, an ex-Assemblyman, now district passenger agent of the South- ern Pacific Railroad, with headquarters at Fresno, appeared before the commission and was allowed to present a petition and make an address in support of it. He wanted the signatures of the Commis- sioners. The petition is the same one that is said to have been signed by many members of the present Legislature, Itis addressed to the California delegation in Congress and asks their support for the amendment to the interstate commerce act, now pending in Congress, prohibiting the ‘“‘scalping” of railroad tickets. In the way of both State and local interest District Passenger Agent May read the following copy of a telegram which he said had been for- warded to Washington by Rolla V. Watt: SAN FRANCISCO, Feb. 2, 1897. California Representatives, House of Represent- atives, care Hon. James G. Maguire, Washington, L. C. It hus been finaily deiermined that the international convention of the Christian Endeavor Society will be held in this City in July next. The transporiaiion companies have mede this possible by conceding the rates requested by us, which are the lowest ever offered. We promised the railroads if they would ao this our best afd to protect tnem. Our utmost efforts and theirs will not prevent serious abuse. Reports from all sources indicate the largest gathering ever held on the Pacific Coast, and iraught with the greatest possibilities for California. SWeare therefore specially interested in the 11l now before the House to reguiate the sale of raiiroad tickets, in the form of an smend- ment to the interstate commerce act, and would respectiully urge your earnest and constant support thereof. The whole Pacific Coastand the entire Christian Endeavor So- ciety of the United States with its 2,000,000 membership are especislly interested 1u mak- ing the '97 couvention in every way a success and in preventing anything that will tend to detract from its fame, as would a large traf- ficking in railroad end steamship tickets by unprincipled and irresponsible outside per- ties. If the amendment be not passed it will doubtless result in the transconiinental lines placing such restrictions upon the tickets as will seriously interfere with the attendance &nd prevent the coming of many hundreds if not thousands. We favor the amendment on principle as well as on account of the forego- ing local considerations. Sixteenth International Christian Endeavor Committee, by RoLLA V. WATT, Chairman. C. F. BAKER, Secretary. It was also stated by Mr. May that one of the very few prominent public organi- zations in San Francisco wuich had de- clined to sign the petition was the State Board ot Trade. W. H. Mills is one of the directors of this board. His official railroad title 1s_land agent, land depart- ment, Central Pacific Railroad Company. Mr. May was greatly amused, and thought it was a great joke that Mr. Mills would not sign & petition in the interest of the railroad. A. Ottinger, a local ticket-broker, ad- dressed the commission in behalf of the “'sca He saia, in brief, that the ticket-broker is & public benefactor. He offers 1o sell to the public unused or por- tions of unused railroad tickets at reduced rates, whereas oiherwise the money for them would remain in the coffers of the railroad company and nobody would get the use of tne ticket. The Commissioners concluded not to sign the petition. Along this line Commissioner La Rue remarked that interstate tickets ought to be made good till used. Since the last meeting vrinted copies of forms for making annual reports and in regard to classification of operating ex- penses of raiiroads were received from the Interstaie Commission at Commissioner Stanton’s request, and the Commissioners proceeded to compare them with the forms alreadyin use by the State Com- mission in Caiifornia. Though the com- parison was uot complete, it appeared that they were substantially the same. A ietter from E. E. Wright, assistant controller of the Southern Pacific, was read, stating that the company bad, in order to meet the forms of the Interstate Commerce Commission and the commis- sion of this State, and furnish informa- tion, changed its fiscal year from Decem- ber 31 to June 30, and expressed the hope that the commission would find the forms more satisiactory than they had been. He stated that a different method of re- orting than was made to the Interstate Jommerce Commission and to the United States Commissioner of Railroads would put the company to much expense. Last evening Rolla V. Watt said, in ref- erence to his telegram to the California Congressional delegation: “My opinion of that date has since been confirmed. Restrictions have since been placed on the sale of the $51 round-trip ticket from Chicago in the matter of stop- over privileg 1 have seen the schedule made by Manacer Colville of the Western Traffic Asaociation, and for instance there are, on the return ticket, nostopover priv- ileges north of Redding, Cal. Police Tribunal. The Police Commissioners last night dis- missed four poiicemen from the force. Fred Higgins was convicted of sitting down while on duty; Owen R. Redmond, of intoxication while on duty, and Joseph 3. Mooney, of in- toxication, and John A. McGrath, for physical incapacity. 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