The San Francisco Call. Newspaper, March 4, 1897, Page 11

R ———_—— TIIE SAN FRANCISCO CALL, THURSDAY, MARCH 4, 1897. 11 A WHITE CHILD WITH GYPSIES Answers the Description of a Girl Missing Up North, Mrs, Prescott Has Set a Watch on the Camp Pending In- vestigation. The Blu:-Eyed Child Se>ms S rangely Out of Placs in the Wretched Wagon. OARLAND Orrice Sax FRANCIsco CALL,) 908 Broadway, March 3. | Some excitement was caused this aiter- noon by the presence of a handsome white child among a crowd of low-caste RYpsies, Four wagons, upon which were loaded all kinds of what ordinary folks call rub- b'sh, passed along Twelfth street toward East Oakland to-day. Toeach wagon were harnessed three nondescrint beasts which looked hough they had not seen hay ora hostler all their lives. A mass of -soaked gunny sacks and old mat- | sses was in each wagon, and out of it ere protruded a few poles which were dently used as supports for their tents. 0O each wazon was a family consisting an and wife and, on an average, half of s dozen little urchins, with ragged clothes, ss, unkempt heads. The e looked surprised at evers- saw, and (he wild horses time a streetcar approached, e instances jumping right across acks and exposing the family to passed along Twelfth street iced in one of the wagons a 2l iittle blue-eyed white child. It red 1o be out of place among its ¢ little companions and attractea much attention. The fact was reported to Mrs. Prescott of the Children’s Societ; and she at once started out to investizate. few weeks ago Mrs. Prescott received a letter trom a lady irom one of the norih- 1 counties informing ber that a little ad been stolen and that its disap- was simuitaneous with the pass- ough the town of a band of Mexi- an gy psies. Mrs, Prescott deemed it inadvisable to the cuild from the gypsies without per an rity, and so she has piaced a tch over the gypsies so that the child | not be spirited away, and she is mak- rquiry regarding its being in such ing company. LEAVITT ON SALARIES, Declines to Raise the Proposed Schedule of Pay for the County Asseasor, | 0AxLAND OFFicE Sax Francisco Cary,) | 908 Broadway, March 3. { The inquiry 1nto the salaries of county flicials by the Alameda legislative dele- gotion will not be reopened. An effort has been made auring the past few days bty many friends of Assessor Dalton, ask- that a raise of $1000 be made on the | proposed to allow the next As- | Clark-tried to-get 15, put 5 efused to do so and the project was sbandoned. rank Leavitt sent a T to Oakland to-day for on. He explained that the dele- as tried entirely to forget indi- and 10 do their work in rearrang- in a business-l1ke manner. In Mr. Leavitt makes the fol- antagonistic:to Mr. Ou the con- d'y with Mr. Dal- 10w of 1o reason why 1 re. > has been asking the 10ever he may b ¥ other county officer shal e matter already has bee ¥ officers, with the e ax Coilector and County of Schools shai t is amou ral of the State of Calif be said the office of s ot | sportance and has greater responsibili. | ched than that of the Mavorand | the Board of Public Works of the city of Oskland? the consideration of the: tax- P of Oakland that a net salary of §4 ntpas toavy man who may be elecied 1o any couniy office in tae county of Alameds, or, for that matter, any county the State. Were we to attempt to reduce the salaries of the officers during their pre-ent term of office there might be good grounds for objections, ut under the present couditions, when a | ther business cnterprises are undergoing sof retrenchment and reform officers and county offices should not ade an excaption to the rule. Further, the Los Angeles delegation has plsced ils Assessor, with nearly twice as much Property to assess, upon & net salary of §3600. - AN ORATOR CONVIOTED. Spoke on the Street Corner in Violation of an Ordinance. OAKLAND, CAL., March 3.—F. A. Ham- ton, the youth who spoke in the street in order to test the ordinance, was found guilty this morning by a jury in the Po- lice Court. « This afternoon Attorney Majors discov- ered that a writ of habeas corpus had been issued by the Superior Court in the case of one Sherwood, a Salvation Army worker who was convicied, but the matter was uliowed to siumber. This afternoon At- torney Gibson appeared before Judge Og- deh and called up the Bherwood writ. It was denied and Sherwood was remanded. An appeal to the Supreme Court will be taken at once. To-morrow is the time set for passing sentence on Hamilton. Sher- wood is now far away and no one knows where he is. ————— DEATH Of MRS, SWIFT. Had Lived Here Since Times. OAKLAND, CaL., March 3.—Adelia P. Ewift, widow of the late Judge C. H. Swilt, died this morning at her home on Filvert street, at the advanced age of 85, he immediats cause of death was the b She Pioneer Mrs. Swift resided in this State for the eater portion of the time since 1852. or husband, Judge Swilt, was for many vears president of ibe Sacramenio Bank and was Mayor of that city for several terms. He came to this coast in 1849, in ne same party with R H. McDonald. e leaves two daughters, Mrs. F. H. ohman and Mrs. E. A. Towne. A third daughter, formerly the wife of the late Edgar Miils, brother of D, O. Mills, died some years ag .. e In a Soldietr’s Grave. OAKLAND, CAL., March 3. —C. E. White was buried to-day by the Knights of Pythiss. The Grand Army was also rep- re--nted by a detachment of veterans. Representations from the Grand Azmy‘ | debr, ALAMEDA COUNTY NEWS. offictated as pall-bearers, namely: Major Woodward, H. L. Longfellow, P. W. Car- roll, William Rushmore, A. C. McMuilen. The ladies of Colonel John B. Wyman Post, G. A. R., present were: Past presi- dent, Mrs. Stothar ce-presid nt, Mrs. E. C. Sampson; Mrs. E. B. Thorne, Mrs. Lynes, Mrs. John Purvis. i The interment took place in the soldiers’ plat in Mountain View Cemetery. — e - — UMBRELLAS ON HAND. A Thief Hid Them Under the Bed of a Curator. OAKLAND, Car., March 3.—The keeper of the free reading-room on Clay street, between Seventh and Eighth, is anxious to hear from the owners of eight umbrel- las which he has in his keeping. This morning when he woke he found the um- brellas under his bed. It is supposed that some enterprising thief who had been out on a raid last night placed the stolen articles under the bed before the curator locked up for the evening. The thief evidently thought that the curator would not notice the umbrellas, and that e could come for them some time to-day and take them away without attracting attention. When found the tmbrellas were all wet, so that the thief must have taken them them from the anteroom of some hail. INAUGURATION BALL Will Be Given by the Ladies’ Republi- can League. OAKLAND, Car., Mdrch 3.—The Ladies’ Republican League of Oakland has ar- ranged for a erand entertainment and inangural ball Thursday evening in honor of the accession to the White House of Major McKinley. Mrs. Dr. Derrick, the president of the league, and a committee of ladies have made preparations for a very successful gathering, and there will be a very large attendance. Handsome little souvenirs bave been prepared and will be distributed to every person present. Ex-Mayor W. R. Davie will make a little speech on Presic dent McKinley. The ball will take place in the audito- rium of Grand Army Hail on Thirteenth street. M OLD GESIDENT DEAD Robert McG-un, One meda’s B:st- Known Res:dents. Good Government Ciub M-eting—En- cinal Ciub E ects O:ficers. The Dairies. ALAMEDA, Car., March 3.—The Good Government Club held a2 meeting this evening to complete its nominations for the coming municipal election. It will hold a primary on Saturday for the final selection. Asthere are betwéen 1800 and 2000 members of the club, it can be seen that there iy a great deal o1 interest in the proceedings of the organization. Death of an Old Resident. ALAMEDA, Car., March 3. — Robert McGoun, one of the oldest and best known resideats of Alameda, died early this morning at the residence of B. E. Combs, 29 San Antonio avenue., The funeral Wil take place on Sunday under the aus- pices of the Masonic fraternity, of which he was an o!d and nonored member, He was a naiive of Pennsylvania, aged 71 years, and bad lived in this city twenty- six years. He came here from Nevada County, where he had been mining with considerable success, and was engaged for fourteen to sixieen years in the tobacco busineas. L'quid Bills Unliquidated. ALAMEDA, Car., March 3.—Edouard Louis, the proprietor of the Leuvre, has brou ht suit against the weil-known wealthy lumber merchant Peter White to recover the sum of $86 for ‘‘zoods, wares and merckandise soid and delivered.” fIn the present case these goods, wares and merchandise were of a more or less liqud character, and it is said that Mr. White's recollection of the amounts cousumed is so hazy that he feels an unwillingness to settle the little bill. If the case comes to trial some amusing developments are expected. Report on Dairios. ALAMEDA, Car., March 3.—Veterinary Carpenter’s monthly report of the condi- tion of the dairies which supply this city with milk shows twenty-three of the estab- iments to be in good condition, eight r and four poor. _This is the only town 1n the State where the reports are publicly vosted, and mitk consumers can go at any time and see just the condition of the fluid supplied them and of the dairy furnish- ingit. The knowledge of this stimulates the dairvmen to maintain the quality of their product and iake pains with their premises which would not otherwise be the case. Encinal Club Election, ALAMEDA, Cit., March 3—The an- nual meeting of the Encinal Yacht Club was hela last evening, and new officers were elected. The repor's of the Various officials showed the organization to be in 2 most flourishing condition, with 116 members and a goodly reduction in the while substantfal improvements bave been made during the year. The gross of the organization foot up abou. $8500, with & debt of $2500, and $300 in bank. Committed to an Asylum. ALAMEDA, Car, March 3.—News has been received here that Mrs. John Rade- maker, formerly Miss Lillie Brower, who was one of the prominent belies of Ala- meda three or four years ago, has been committed to the insane asylum in Men- docino County. where her home has been since her marriage. She has two children, one an infant of but 4 or 5 weeks. Alameda Candidnates. ALAMEDA, CAL, March 3.—The Good Government Club made further nomina- tions to-night to be voted for at the pri- mary on next Saturday as follows: For Library Trustees, J. L. Field, George S. Antes, Herman Taelken, Charles L. Wel- ler, John Lutgen and George H. Mastick; for City Trustee, E. J. Dodge; for Re- corder, Alexander Innes. 7 = e S— Dr. Shirk’s Pouitio; OAKLAND, CAL, March 3.—Dr. A. Shirk of San Leandro was misrepresented in a recent report of the meeting of the Board of Supervisors. A few days ago the board declared Dr. Shirk’s position as visiting physician to the county infirmary vacant ani appointed Dr. Butean to ~uc- ceed him. Dr. Bhirk was not notified of the change and a:tended hospital for soy- eral days after the appointment of Dr. Buteau. On Monday a messenger was sent direct from the Supervisors officially informing Dr. Shitk of the situation. He accepted it gracefully, but the impression went forth that he was loath to vacate. This was not so, and the doctor, who is an honored member of the Grand Army, is anxious to correct the ialse impress.on. A Young Girl Missing. OAKLAND, CAL., March 3.—Rosa Rahl- stein of Elmhurst is missing from her home, and her mother believes that some of her neighbors are narboring the girl. To-aay Mrs. Rahlstein applied to the Dis. trict Attorney ior a warrant for the arrest of Daniel Smalley, whom she blames for her girl’s disappearance. Smalley told his tale to the District Attorney, and that official beiieved that the girl left home be- cause of her mother’s ill-treatment and refused to issue a warrant. Smaley aa- mitted that he drove the girlinto- Oak- land, as _she said she was going to visit friends, but since she arrived 1u this city nothing has been heard of Lier, of Ala| CENDIDATES WOES ARE INCREASING Why They Use the Side Streets in Preference to Broadway. Members of Piece C'ubs Wear- ing Leud Badges Never Were So Numerous. The Saloon-Closing Issue Will Help Sw:1l the Republican 0AELAND OFFICE SAN FRANCISCO CALL, 908 Broadway, March 3. l’ The campaign vprogressed a distinct step to-day and the political badge made its appearance. Politics is now hvely and there are not many unemployed ex- press wagons, old bells or snare drums to be found in the city. Upon the wagons have been built canvas, multi-storied houses, on the waving walls of which are that he has retired from the fight. He was indorsed last nightin his candidacy for Mavor by the United Colored Ameri- can Repubiican Club. Conservative ob- servers do not think that Mr. Henry can by any possibility receive 1000 votes. GIBES FOR THE FACULTY. Student Editors Will Take Advantage of the Kight of Free Speech. BERKELEY, CaL., March 3.—The stu- dents at the State University are antici- pating with much interest the appearance of ’98's Blue and Gold, as an array of hits, gibes, joshes, caricatures and doggerel, such as appeared in ’96's book and which created such a widespread sensa- tion, are promised by the juniora. No restrictions have been levied on the editors by their classmen this year, and nothin: atall in the nature of coercion has been heard from the faculty. So they are at liberty to put into the book what- ever their sense of _progrlety and best judgment will permit. The editors say that they have been untrammeled in their work of collecting material for the book and that they are making the best possi- ble use of their privilege or free speech. Meeting of Alumnl. BERKELEY. CAL, March 3.—A meet- ing ol the Alumni Association of tne State University has been called for next Satur- aay evening at Mark Hopkins' Institute of Art, at which the foliowing items of business wil! come before the meeting: Some action in recognition of the enactment by the Legisiature of the law augmenting the university’s income; report of tue special committee on general alumni affiliation or federation, and, in case the p.an proposed is adopted, election of the councilors therein rovided for; suggestions that may be offered Py the alumai looking toward an increased day: believe, for piece clubs. tributions. who are waiting for him on every corner.” Fate of a Candidate on Broadway. OAKLAND, CaL, March 3—One of the candidates for the Council romarked to- ““It is a fact that tbis has been the worst campaign in the history of the city, I A man can hardly turn around without being asked for con- But this is not the worst. A man is not only siruck by the delegations from ‘independent’ clubs, but be is compelled to stand off an army of brazen loafers painted all kinds of advice to voters, and | which set forth the merits of candidates who bave not yet exbausted their purity of election funds. Inside tnese structures small boys are ringing bells or hammering drums, and blind and deaf and dumb must be the resident of Oakland who is not reminded every minute of the day that there is an election next Monday. As soon as the first badge was noticed this morning the desire among candidates to have people wearing their emblems proved to be in- fectious, ard before night there was al- most as big a run on the ribbon houses as during the week prior tothe great McKin- ley parade of last November. There 1s no doubt that this method of adornment wiil grow rapidly during the few remaining days of the campaign, and by Sunday it is very probable that any willing wearer will be able to obtain enough badges to make a ma-querade suit. Candidates are now avoiding Broad way. The number of piece clubs that have sprung up is something alarming, and if ail the money solicited for *“hall rent” really goes into the landlord’s pockets, the campalgn must have proved a verit- able boon to them. “Workers'’ are even more numerous, while the numker of friends of the candi- dates who are anxious for small loans has never been rqualed. Judged by the os- tentatious display of “friends” every can- didate should feel absolutely certain of election. Promises, however, are forced down toa_fine point by the Australian ballot, and there is no doubt that any- body who was not nominated at the Re- publican convention will have an oppor- tunity next Monday night of contrasiing his small number of votes with the multi- tude of promises made by his friends, Tne matter of closing the saloons will help to bring out a large number of voters. A leading candidate on the Democratic ticket acknowle.iged to-day that he could not be elected. “This saloon guestion,” he said, ‘‘will call out about 1500 voters who otherwise would not have gone near the polls. These will swell the Republi- can majority, and that is where we shall lose. The organized campaign made by those anxious to close the saloons will cer- tainly have the effect of electing the Re- publican ticket.” Among the latest people of prominence to express themselves as being in favor of closing the open saloons are: Dr. Wendte, Police Judge Fret V. Wood, Rev. J. E. Busnnell, Rev. Philip Graif and Professor T. 0. Crawford. Mayor Davie is kept busy making re- plies to the attacks of his political ene- mies, and is doing his best to substantiate the fact that he never did anything which would imperil the obtaining by the city of Qakland of the water front. Councilman Bastett also has a cam- paign of explanation on hand and so have seyeral other candidates. An effort is being mude to unify the Re- publican vote in the Fifth Ward. Dr. W. 0. Buckland, the present Councilman, is running on the Municipal League ticket, and F. M. Parcells is the regula: Repub- lican nominee. Opposed to them is A. Fibush, tha Democratic candiaate, ana it is feared that unless one of the two Re- publicans withdraw the ward may return a Democrat. 2 The Young Men’s Repubiican Cinb of the Seventh Ward hLas arranged to do effective work on election-day. They have dispensed with the ides of holding mass-meeting in their ward, as anti- saloon meetings are being held every nicht. Special efforts are being made to secnre the full vote of the commuters be- fore they go to San Francisco, and the secretary of the club has been direcied to ask the clergymen to make the same re- quest in their pulpit announcements on Sunday. A. C, Henry wishes to deny the report usefu'ness of the association in advancing the best interests of the university. » ills-Robb Wedding. BERKELEY, CaL., March 3. —The wed- ding ot J. 8. Milis of Haste street to Miss Rowena Robb took place this evening at the residence of the bride’s mother on Ellsworth street. Rev. Georze B. Hatch verformed the ceremony. The bride 1s well known 1n the university town, as is also the groom, who has for some time past held a high position in musical circles. Gates on the Trains BERKELEY, Cav., March 3.—The gates on the Berkeiey trains will be put into | use, beginning with_to-morrow morning. They will be utilized to compel passengers to get on and off the cars on the side where the station building stands. Congratulated Them. BERKELEY, CAL., March 3.—President Martin Kellogg of the State University has written a letter to the students congratu- lating them upon the excellent showing they made at drill last Saturday, during the celebration over the passage of the 1-cent tax bill. People’s Party Conventlon. BERKELEY, CArL., March 3.—The Peo- ple’s party ot Berkeley will hold its con- vention one week from to-night at Sis- terna Hall, West Berkeley, to name a ticket for the coming municipal election. Death of Captain Gunn, BERKELEY, CaL., March 3.—Captain Thomas Gunn, a native of Eneland and an ola resident of Berkeley, died at his home in Lorin yesterday at the age of 88, —————— Jubilant Over Their Park. OAKLAND, Carn., March 3.—The West Oakiand Improvement Ciub is taking the preliminary steps to hold a jubilee ex- pressing their satisfaction at the park which will soon take the place of the West Oakland marsh. It is the idea of the committee to devote one afternoon and evening to the jollification. There will be plenty of music, all kinds of fire- works, good speaking and, if the finance committee so advise, a banquet. FINES WERE PROVIDED. Mr. King Testified in the Case Agalnst the Chinese Consul, Both Fong Yuen Hing, the Ohinese Consul, and King Ow Yang, the Vie Consul, were on the witness-stand in United States Commissioner Heacock's court yesterday in the case of the See Yup Society against the Consul. Nothing particular beyond a few unim- portant details of the trouble between the See Yups and Sam Yups wus drawn out of the Consal. Mr, King, as the Vice-Consul is called, identified some translations of the consti- tation and by-laws of the See Yup Society, which he said provided for fines on mem- bers who shouid patronize Sam Yup stores. As the Consul for the See Yups wanted his own translations the matter went over until this morning. Fong Yuen Hing was, as usual, accom- panied by his bodyguard—members of the Woey Leong, the Chinese police of the Chinese quarter. ped S S S SIX MONTHS FOR A KISS. The Penalty Imposed Upon a Heathen Who Embraced Mrs, Holmes. Ah Jim, the Chinaman who waited for Mrs, Holmes every morning as she passed Bixth and Market streets and then saluted ber with a Kiss, has been sentenced to serve six months’ imprisonment in the County Jail, WiTaIN THE -GALLOWS" SH-DOW Continued from First Page. specially framed, of certain facts assumed to be proved, for the purpose of the inguiry. Such questions leave it for the jury to decide in the first case, whether the evidence is trué or not, and in the second case, whether the particular facts assumed are or are not proved.” Consideration of Jurymen But, as in criminal cases, and particularly in cases of cap tal crime, thie law is reluctant to deny a defendant a fuil consideration of his points because of technical errorsor omissions of his counsel, upon whom he must rely, we pass. to the consideration of the proposition ihat the hypothetical question and its answer were not the subject of expect evidence—a §mllnd of objection not presented to the trial udge. Upou this proposition the deiense i undoubtedly correct. A jursman would be absolutely aeficient in common-sense and common ‘knowledge who did not know that the way to keep an inauimate objact in agiven position would be to supvort it by props or stays in that position. And the physician’ answer gives expression (o this when he sa; ““That is what 1 as an individual would do. There was here no question of professional, scienrific or technicai skill or knowledge. But the question and answer were absolutely with- outinjury. Notail matters improperly made the sunject of expert evidence work harmful error. ‘Where the ultimate conclusion is one to be reached by the jury itself from the facts be- fore it, and so.called expert evidence is allowed waich presents to a jury a conc usion other than that to which tney might have arrived, the admission of this improjer evidence 13 tantamount to a declaration by the court that they may set aside their exclusive right of judging, and accept the judgment of ihe ex- pert. In such cases i1jury is apparent. But it frequently happens tnat under the form of expert evidence answers are given which are s0 clearly a part of common knowledge that no injury could have resulted. The question under consideration is oue of them. Had tne witness been asked: *“If you throw a stone 1n(o a pond of water, wiilit floas or sink? If you strike a man on the head with an ax, will it injure or beneflt him?”’ while the questions do not call for expert evidence, their answers, particularly when, as in this case, they are correctly given, covld in the nature of thins have worked no harm. The Chisel and the Hammer. The defense showed by Police Officer Rey- nolds that two days after the discovery of toe body he found a chisel and hammer in the pastor’s study in the church, and that he tried the chisel upon certain’ marks on the belfry door. He testified: “My recolection is that ‘there were two marks I tried (o fis the chisel to, There Wwas no mark that fitted it exactiy; there was a littl> play; you could move the chisel up and down. could not teil if there was any more play than would or- dinarily have occurred in using a chisel for prying. * * * Isawamark ou the jamb of that door asisat some time a biow had been strnck with 8 hammer. * * * At some time the hammer was tried in that mark.” The defense then introduced the hammer and chisel in evidence. The piain purport of this evidence was (0 direct suspicion {0 the minis- ter. In sebuttal the beliry door and jamb were offered in evideuce by the prosecution, after testimony from the officer that they were in the same condition aswhen previously he bad made the test, saving for the absence of the lock plate. The evidence was permissible. The witness was then asked to see 1f he could| fit the chisel to the marks, It was objected that 1t was for the jurors to satisfy themselyes upon this matter iwithout the intervention of the witness. Itis true, the jurors cou d have made the experimeni o iheir satisfaction without the aid of the officer; but he, having testified to his former experiment, the prose- cution was entitled to have him repeat it be- fore the jury. The result would be as the jury determined, either to support or disprove his oral testimony. The Defendant’s Testimony. The cefendant offered himself as a witness and toid with much circumstantiality and de- tail how be bua spent his time upon Aprii 3. Many objections were interposed 10 ques- tious propounded him upon eross-+xamina- tion. A minute examination fails (o disciose any error in the court’s ruling. The questions aliowed and the scope of the Cross-examina- tion are strictly within the rule expressed in People ve. Ga.lagher, 100 Cal., 466. One or two of the rulings should perhaps receive more particular consideration. The defend- ant testified upon direct examination that when he parted with Blanche Lamont upon the morning of April 3it was the last time that he ever saw her dead or alive, and when asked upon crossexamination if he had not prepared a statement which was put iato a seaied envelope addressed to his counsel with the instruction: +To be opened if I am con- victea uud to be returned unopened iiIam not conyicted,” 10 this and several like ques- tions objections were interposed, upon the ground that the statement, 11 made, was privi- Jeged. The court ruled, and properly, that the questions were preliminars. It was the fact 4nd not the contents of the statement which was the subject of inquiry, and no effort was made to extort from the wiiness any informa- tion of the latter. The cour: further declared that, if the people failed to follow this preliminarv inquiry by proper proofs, it would on _motion strike out ihe evidence. The witness answered that he bad made no such statement, and there the matter rested, presumptively 10 the advantage of the defendant, certaiuly not 10 his i1 jury. From the fact that no motion was made o strike out the evidence, it must be concluded that the defendant scquiesced in its remaining in the case. (Coderberg vs. Robison, 100 Cul, 93.) The court was further ~ justified in its ruling by the consideration that it could not foretell the line of proof wuich the people might take in re- buttal. The contents of the statement, while privileged matter between the ciient and at- torney and all who had acquired knowledge of it through a relation of legal confidence, would not be privileged if known to one who had acquired nis knowledge under other cir- cumstances. The court could not know that it was not some such evidence, which would be proposed at the proper time. Carrie Cunningham’s Story. The prosecution then asked the witness, with specifications of time, place and circum- stance, if he had mot told Miss Carrie Cun- ningham that he saw Blanche Lamont upon the second landing ana that she was mur- defed upon the second lanaing. This was in sebuttal o defendant’s testimony that he had never seen the girl afier the morning of April 3. It is argued by appellant’s counsel that the communication, if made, was privileged. But, considering that Miss Cunningham wasa newspaper reporter, and is not shown 10 have been the wile or to have stood tothe de- fendant in any other relation of legal confi- dence, the claim scarcely merits comment. Miss Cunningham, called in rebuttal, was asked whether defendant did or did not make to her the statement above mentioned. Itis asserted that the allowance by the court of these questions vas a “gross outrage” and “bore down to the ground all the rulesof evidence.” It was strictly rebuttal evidence by way of impeachment under weil-settled rules of law and under the express declara- tion of section 2052 of the Code of Civil Procedure. The foregoing are all of the alleged errors in receiving and rejecting evideuce which call for especial comment, H. J. McCoy in Contempt. It came 4o the knowledge of the court dur- tng the progress of the trial tnat one H.J. McCoy had said to ajuror: “If you don’t hang bim (meaning defendant) we will hang you.” For this flagrant contempt McCoy was at once cited to appear. An examination was held. By this it was disclored that toe language was used jocularly and without a serious signifi cance. At least so the juror to whom it wa addressed testified that he received and un. derstood it. For this contempt McCoy was prompt.y and properly punished. The pro- ceedings were conducied in the presence of the jurs. This circumstance is now for the first time charged as error. Doubtless had the defense desired the jury excused during the investigation the court would have acceded to the request, but no such suggestion was made. We fail to see how the defendant could bhave been injured by this. The mode pursued we think had a salutary rather than malign effect. The claim that defendant could have been prejudiced in the mindsof the jury is completely answered by the 1acts; first, that it was not the defense which efther instituted or conducted the contempt proceedings; and second, by the afirmative declarations of each of the jurors under oath that be reached his verdict irom a consideration of the evidence in the case and from that alone. Fairness of the District Attorney. We perceive no abuse of his office or unfair- ness to defendant in the argument of the Dis- trict Attorney. In showing an empty box to il.ustrate the amount of gas;which under the evidence would leak in a given time, botn the District_Attorney and Judge were carefu! to inform the jury that the box was not an exhibit; that 1o proof of its capacity was be- fore them. and thvthey were not (o accept the Distr.ct Attoriey’s statement as evid-nce. The box was used purely for purposes of ii- lustration, and while the practice s not com- mended, its exhibition to the jury could have worked o _injury in this case under the cau. tions of the court, and in strictness could no Tuction Salcs J. C. NUTHER, AUCTIONEER. Office—632 Market Street. Triday. s Atlia svs, 160 THIRD ST., NEAR HOWARD, the contents of a first- class saloon, including a Fine National Cash i eg- fster; 1 Elegant Bar, with Larxe French-plate Mirror, which cost $i75: Linoeum: Pictures Glassware: Tables: Vien-a Chairs: Clock, et also the Fine Saloon Front, with ground-glass doors. Terms cash. No reserve. Siore to rent. I WILL SFLL TO PAY ADVANCE On MONDAY, March 8, 1897. at 11 o'c ock A. M. 2648 FOLSOM ST., 30 cases Pepper, 6 dozen quar: boities Pinespple Juice, 30 pounds of Coftee, 50 pounds of Mapie Sugar,’ 2 Desks. one Silver Watch, 814 ponnds of huir (Human)., 45 meters ot Weft. 62 ya.ds of Veiverard Household Furniture of 10 rooms. J HN A. MCCORMI(K. more be regarded as error than would have been the like employment of any ordinary physical object in the courtroom. Error is assigued for the court’s refusal to give certain_instructions proposed by the defense, in number thirty-six. Argument is addressed to but few of them. Those will be considered. The cthers not argued have not been over- looked, but they either contain manifest er- T rsof law, or are so completely covered by others given of the cour’s own notion that it may with safety be concluded that counsel’s failure to discuss them is & tacit recognition that s to them DO @rTor Wascom- mitted. Technical Points of Law. Of the proposed instructions, No. 6 was re- fused because substantially given in the cherge of the court. It wasso given. No.8 deals with the danger to be avoided and the cavtion to be exercised in reaching a conciu- sion upon circumstenual evidence. Upon this subject also the jury was fully and fair.y advised by the court. The propositions of law contained in the first portion of No. 10 were given by the court with more elaboration and exactuess than ap- pear in the proposed instruction. It was not error for the court to decline to give the last portion. It s quite true that the 1aWw never re- : he sacr fice of & victim. But the jury arefully instructed as to their duties, and had been repeatediy told that un- less upon clear and cogent proof, satisying their minds beyond a reasonable douot, they belleved deiendant guilty, it was_ their duty to acquit him. It was not incumbent upon the court to instruct the jury, as matter of Iaw, that “it js safer to er: in scquitting.” Proposed instructions 11-16, upon the sub- Ject of alibi, were fully embraced iu those given by tne court, as wasalso_the law upon the matter of identification, Of the remain- ing instructions the same may be said. It may here be noted that the appellant does not make serious complaint that any of the instructions actually given by the court were erroneous in point of law, but contends that in some instances the propositions which he sought to have laid before the jury were not adequately presented. The jury, however, ubly, carefully and elaborately instructed, and we ¢an discern no just ground of com- plaint in this regard. A Fair and Impartial Trial. The grounds for a new trial presented by de- fendant have for the most part been covered by what has been said. One of them, how- ever, siill remains for consideration. Tnis is that the proceedings were so conducted 8s to deprive defendant of his constitutional right to a fair and impartial trial. Under this head 1t is claimed that by the repeatea pub ica- tions in the newspapers of San Francisco pub- lic feeling was unjustly aroused to bitter hos- tiiity against the defendant; that witnesses who would otherwise have given yaluable tes- timony in his favor were o intimidated that either they refused to testify or in testifying gave coloriess or worthless evidence, and that the jury itself, impelled by fear, yielded to the ubifc” clamor and demand’ that the de- lendant should be convicied. Many huu- dreds of pages of the trauscript are given over to a presentation of the newspaper articles complained of. The murder of B'anche Lamont was a crime of so atrocious a character that the commun- ity was greatty aroused. The ghastly and sel sational features wereseized upon wi'h avid- ity by the newspapers, and daily paraded and exploitea before their horrified readers. Whnen Durrant was arrested for the crime there was no reservation of judgment upon thelr part, but they proceeded with unanimity toliold him up to the public as the guilty man. During the trial of the case they vied with each other in sensational discoveries and prophecies concérning new evidence and strange witnesses, They maintained through- out the attitude which they originally as- sumed, and from first to. last continued to treat the defendant as the undonbted crim- inal. All this the record presented by appel- lant abundantly establishes. Opinion of a Lommunity. But, where a_community is deeply stirred over the commissfon of &n avpalling crime apd the public and the publfc prints are clamoring that punishment shall be meted out for 1t, unless we must say that under such circumstances, 88 matter of law, a defendant cannot have the trixi guaranteed him by the constitution, such a_showing does not conclude the question. Under these circum- stances ali men do not forsake reason; some still preserve a dispassionate judgment, and if itbe made to appear that ihe defendant was tried by a jury of such, uninfluenced by aught save the evidence, then in this regard none of his rights have been violated. After rigorous examination by orosecution and de- fense it appears that such a jury was obtained without exhausting more than three-fiiths of the defendaut’s peremptory chailenges. Each juror -makes solemn affidavit that he did not-at any time.during the trial of the cause and while he was impameled andsworn as & juror read or hear read any of thearticles, statements or comments published in sny of the mewspapers concerning this case; that he at all times heeded the admonition of the court, given at each adjournment thereof, and was atno time influenced in any way, shape or manner by any extrancous matter whatever while a juror, either by newspapers, conversation or pub.ic sentiment—if any such sentiment existed; that he receivid no im- pression as to the defendant’s guilt or inno- cence outside of the courtroom, but decided the case, after deliberation, solely according to the law and tne evidence, o the best of his ability and understanding, and not other- wise. It cannot be said that there was any error in refusing a new trial under such a showing. Wit esses Not Intimidated. The claim that witnesses for the defense were intimidated and kept from testifying is not supported. It was expected to prove by a witness, Clark, tnat oa the afiernoon of April 3 he saw upon a Market-street car Blanche Lamont with & young man not the defendant. Clark was in one of the Eastern States during the trial and his devosition was there taken. It wes to the effect tnat ho saw Blanche Lamont and a young man, Not answering tue description of defendant, {ogether upon a car upon a day in the Iatter part ot March or the first part ot April, but the date he could not fix with positiveness. He said that he believed that he had told a lawyer that it was upon Aprit 3, but that subsequent consideration had convinced him that he was mistiken in this. There s here no suggestion of undue influe: 2 or intimidation. The witness (Lenaban) called for the defense testified from all that appears precisely as the defense expected. Mrs. Monnier, it is claimed, was expected to testify that upon tae afternoon of April 3 she saw a young man, whom she would identity as the defendnnt, enter the Emmanuel Church alone; tha%, because of newspaper publica- tions ‘and jaterviews with her, her husband became afraid that his business would be $njured, and between fear and anger so talked with his wife, and had others do so, *‘that_she became uncertain as to the time.’ This declaration is made upon the information and beifef of defendant. It is not supported nor corroboraied. Even the source ‘of afliant’s in- formajon is not mentioned. It does not ap- pear that Mrs. Monnier was not at all times Within reach of process, yéi no attempt was made to introduce her testimony. This show- ing is certainly insuffictent to call for a re- versal of the case, The Judgment Afirmed. Upon & consideration of the whole case we discern no error to the prejudice of any of the substantial rights of defendant, wherefore the judgment and order appesled from are al- tirm¢ HENSHAW, J. We concur: GAROUTTE, J. VAN FLEET, MCFARLAND, Harersoy, J. TEMPLE, J. McFarland’s Concurring Opinion. 1 have signed the opinion of Mr, Jus+ice Hon- shaw, and thereoy concurred in his opinion, and in the -judgment of afirmance. But, while I can see no legal ground for a reversal of the judgment, I desire to say that the Con- viction of appeliant would have been much mora satisfactory if he had been tried in some county far beyond the reach of the threatening atmosphere which surrounded him at the place of his trial; and where the active and jong ¢ n inued attempts to forestall judicial inquiry, and compel a ,hostile decision, could not possibly have had much force. As the case stands, it is somewhat difficult to feel surhi- clently assured that outside adverse pressure did not bave some insemsibe influence. The fac-simil '; signature of 4 is on u;ny ‘wrapper _of CASTOBIA, S. P. MIDDLETON & C0. REAL ESTATE AND GENEBAL AUCTIONEEE, 11 Monigomery st., Lick House Block. SANITARIUM BATHS AT AUCTION. WEDNESDAY. Wednesday.. March 10, 1897, At 11 0'clock A. M., on the premises, Southeast Cor. Powell and Bay Streefs, The Builulng Known as tiie SANITARIUM BATHS, Together with all its FIXTORES, TUBS, PIPES and MACHINERY It purchaser desires, a long lease will be given of the land. B TERMS CAS But, whether or uot appellant had a substan- tially fafr trial, notwithstanding direum. stances which certainly made it difficult for him (0 have such a triai, is & question which addresses itself, in the first insiance, to the presiding Judge of the trial court; and it is not so apparent that he abused his discretion in determining that question in the afirma- iive as (o give this court warrant to reverse the order denyiug & uew trial. _As tothe other points involved in the appeal, I am clear that no subsiantial error was committed. MCFARLAND, J. Eugene N. Deuprey of counsel for Dur~ rant d last evening that he had no seen the opinion, but that it was by no means final. Durrant's attornevs, after considering the decision, would at once petition the Supreme Court for a rehear- ing. The fact that Chief Justice Beatty had declined to sign the opinion might prove of value to the defense, and his opinion, when it was handed down, would be closely considered. Then there would be a constitional peint which would un- aoubtedly be carried to the United States Supreme Court. Mr. Deuprey admitted that the decision had been a surprise to him, especially that it bad been reached so early, consid- ering the voluminous character of the evi- d nce. Senator Dickinson, when interviewed by a CALL correspondent in Sacramento last evening on the subject of the refusal of the Bupreme Court to grant Durrant a new trial, said: “Iam not prepared to state at this time what further eteps I will take in this mat- ter. In fact, this is the first intimation which I have received that a refusal fora new trial has been made by the Supreme Court, and if such be the case, it would be simply 1mpossible for me to come to any decision for future action until I have seen this decision. It may possibly be that I shall petition for a rehearing in the entire matter, but, as I said before, I can- not possibly at this time state what action I will take.” SCOTTISH WHITE FEATHER Highlanders Refused to Meet the Hard-Pulling Swedes. The Teams That Were Succes:ful—Interest in the Contests Rapidly’ Increas The crowd that witnessed the tug-of-war last evening was the largest since thes commencement ot the tournament. Much disappointment resulted over the announcement that the Scotch team had reiused to pull unless it had the privilege of naming an anchorman. This the Swedes objected to. Tue referee, Judge Campbell, decided, after inquiring into the matter, that the Swedish team was right, and he gave it the decision by de- fault. The United States and Norwegian teams were the first to put in an appearance last evening. The Unitea States team won a comparatively easy victory in 2 min. 25 sec. The newsboys of Powell and Kearny streets made up a team, and at the request of Judge Campbell, they were given a chance to try their strength and stamina in rope pulling. The eventcreated no end of amusement, The contest was won by the Powell-streat boys in 9 min. 2 sec. The Italian and German teams had a ery spirited struggle. The betting was ;10 to $5 in favor of the Germans. The finish-shot declared the Italians winners in, 9 minutes 43 seconds. The nextevent was a contest between the Canadian and Danish teams, but the anchorman of the Canadian team, James Dunning, refused to pull for reasons best known to himself. The Judge announced that the Canadian team cecided to pull with only seven men as against eight, and then the captain of the Danish team refused to pull with the handicap aad ordered one of his men out of the team?making the struggle an equal thing. Th’z Canadians won the event, after a most bitter struzgle, in 6 min. 36 sec. The last event of the evening was a meeting between the Irish and French teams. The betting was 10 to 4 in favor of the Irish team, which won in 17 min. 31 sec. SUMMARY OF EVENTS. United States beat Norway. Sweden beat Scotland. Italy beat Ge rman: (Ganada beat Denmarl 6 min. 36 sec. ireland beat Erance... 17 min. 31 sec. The single-handed heavy-weight pulls resuited as follows: William Morgan pulled 995 pounds; F. Schode, $90 pounds; Jobnson, 925 pounds. PLAYED FOR EVIDENCE. A Policeman’s Experience With = Nickel-in-the-Slot Machine and & Saloonkeeper, Police Officer M. J. Hemenez made the rounds of saloons about Market street yesterday, playing nickels in the slots of gambling machines. His success was not remarkabie until he strayed into the '‘Art Saloon'’ on Market street, near the City Hall. He won 25 cents, according to the dial, and when brass checks were offered him, each check entitling him to 5 cents’ worth of refreshments, be asked for money instead. He was given the coin, where- upon heshowed his star, took the machine in charge and arrested Thomas P. Dunn, the proprietor of the place, on a charge of carrying on a banking game. ———————— The Newly Married Burglar. Paul Graves, alias Milton Berry, appeared before Justice of ¢he Peace Groezinger in Judge Joachimsen's court yesterdey to sm- swer to two charges of burglary. At the res quest of his attorney the cases were continued till next Tuesday. Graves Is the young man who was married on Monday to Anna M. L. Steen as & proof of her beliel in his innocence, - o———— St. Vincent de Paul Society. A general meeting of the conferences of the Soclety of St. Vincent de Paul will be held In the Hall of St. Joseph’s Church, Tenth street, near Folsom, on Sunday afternoon next. 2 min. 25 sec. .By de ault min. 43 see. Dr. Gibbon’s Dispensary, 625 KEARNY ST. Established in 1854 for the treatment of Private Diserses, Lost Manhood. Debility or disease wearing on bodyandmindand Skin Diseases. The doctor cureswhen otbersfall. Try him._ Charges low, Curesguaraniced. Callorwrite Dr. d. F. GABBON. Box 1957, Sen Fraucisos. ) i LA