The San Francisco Call. Newspaper, March 4, 1897, Page 2

2 e e eeee———————————————————————————————————————— F RANCISCO CALL, THURSDAY, MARCH 14, 189 to comply with the law, in that of the jurors seiected some did not possess the requi- Site qualifications, is cquaily unienable as a ground of challenge (0 tue panel. (People vs. Young, 108 C: 12) To hold mandatory the provisious of section 205 oi the Code of Civil Procedure, aud thus to require of the Judges the strictest compliance with the law in the matter of the selection of jurors, would be to o last deg ble. They would then be obiiged to L 1i other business and devote (heir ti lays, and perhaps me for @ wee ¢ al inquiry, inspectfon and examination of 3600 men (the number of jurors calied for), und aiter this labor to de- tide at the perilof a rejection of the whole the he final nsme upon the list hau possessed ull the aualifications of & The provisious of lie scction aredi- 1 u suostantial compiiance with re shown and is all thut may be de- em is b maunded. Regarding Trial Jurors. ction 204 of the Code of Civil Procedure des that in counties and cities and couu- tles of more than 100.000 inhabitants the Juuges of the & o Court shall select and return trial jurors. Though the section was amended in 1881 and again in 1893 the pro- visions relative 1o cities and countics of over 100,000 inhabitants remsin unchanged so fur us affects this consideration. Before the pres- ent constitution went into operation the jurors were selected by the District Judges of the several judicial disiricts within the City and County of San Francisco, the County Judge, the Probate Judge aud the Judge of the Municipal Criminal Court. The ameudments 10 (he section made after the adoption of the prosent constitulion were designed to meet the new system provided for by that instrume section wes & part of the be o jhe adoption of our present con- that instrument (article X1I, section 11) ‘ali laws relative to the judi- cial 5§ en'in force were made applica- ble 16 the new system provided by the consti- | tution. Section 204 of the Code of Civil Pro- ¢ unconstitutional under our nic taw, und did not become un- 1 by force of the present one. To | contrary, the section was expressly re- ed 1n force. re court summoned jurors by special ve- To the panel thus jormed defendant o The objection based upon Was net section 1064 of “the Penal Code, but upon the | that the regular jury iist had not been exhuusted. This is nc d for ¢hall (C. ¢ Cal, 111; Peop.e vs. ons 226 Vincent, non jurors by spec nire without exhausting ail of the names upon The couri may su the regular list. Disallowed Challenges. To the arors Crocker and Nathen ctunl bias, und ion 1073 of the Penal | nges were disallowed. | urors Crocker and Nathar, them, were shown o be disquali- iad against the defendant, and ther or not tue trial court erred bai Whether or n or either ¢ 1 by actua fore v The ~chs in dissliowing the challenges interposed to them, is not under the facts vresented by the record a subject for coneideration by this court. disal ercise The challenges for cause having been owed, the defendant d:d not see fit to ex- his right of pereraptory challenge vpon either of the jurors, but accepted them both. When the jury was completed, defendant still had in reserve and unemployed eight of twenty peremptory challenges. It ha e been heid i numerous instan 0 if the Judge errs in d. win for cause, and the defendant thereafier | excuses the 0bnoxious juror under a peremp- tory challe and the jury is completed withor defense of all the error of the 1 upon appeal, be- could have resulted to the de- | Gatewood, 20 Cal., 146; | 156; People vs. W 5. McGungill, 41 Cal emptory 110t b on here presented differs some- what from that presented by tne caseslast above cited, but the reasoning which gov- erned the decisions in those cases is strictly licable to the one at bar. The defendant | t have reviewed an error which he has invited or has failed to avoid by the legal me 3 at his command. 1f the defendaut | feared to put himself on trial before the jurors ! whom he had chsllenged, it was his duty 1o | avail himself of the liberal aid which thedaw affords him and to have excused them from > doing he lessenéd the num- remptory challenges to such an extert 1 t appears that they -were ex- Lausted before the completion of the jury, he may well be neard to urge in argument ‘hat | by reason of t roneous ruling the number | ol his peremptory chalienges was tmproperiy | d and he was deprived of & legal right; it 18 show, as here, (hat (he two accepied and allowed ) the defense couid have exer- cised peremptcry challenges upon them, and further, thai at the time wheu the jury was | ed there was still held in reserve by #he defeuse nearly hulf of its peremptory chai- iénges—if under these circumstances error | was committed by the trial court, it was either | acquiesced in by the defense or permitted by | its failure to exercise its logal rignt, and the ruling will not be reviewed. The Rule Overwhelming. ere will be found in the cases some slight rsity of opinion upon the question, but t of muthority s in support of | e expressed. Thompson on | 120, thus declares the prin uie of paramount importence that errors committed in overruliog chalenges | for cause are not grounas for reversel, un- less it be shown an objectionable juror was upon the challenging party aiter he ausied nis peremplory chaileages; it remptory challenges remain unex- usted, 5o that he mignt have exe aded the objectionable juror by that means, he has no grouna of compiaint.”” The rule above stated Ainds overwheiming support from the authori- ihe great weig view ak on ple is & had ties, of which a few may be cited: State vs. Gooch, 94 N. C., 957; Williams vs. the State, 30 Tex. App. State vs. Le Duff, 46 An., 546; Siate vs. Yetzer (Ia.), 66 N. W. Rep., s tley (Nev.), 40 Pac Rep.. in, 86 Mich., 393; Brum. 2 onal Bunk, 46 Neb,, 540; Lambert, 19 Colo., 7; Spies vi. The I, 1. rors had been sworn to try the case. t this staze of the proceedings the District Attorney asked and obtained permission of the court 1o reopen the examination of ome | ese (Brown), and to question him upon | rs which come to his knowledge | ceptance as a juror, Permission d over objection and exception of defendant. At the conclusion of the examina- tion the District Atiorney asked leave to in- terpose & peremplors chailenge to the juror. Leave was given, this ruling was assigned or. Section 1068 of the Penal Code pro- vides that a challenge (either peremptory or for cause) must be taken when the juror ap- pears, and before he is sworn to try the cause, WAas gTR th but the court may for cause permit it 1o be taken after the juror is sworn, and before the y is completed. It was not error, there- fore, for the 0 permit a re-examination cour T upon matters coming to the the people or defendant after ceptance, and beiore the completion of | ry. The course here pursued was that i in Peopie vs. Bemmerley, 87 Cal. and approved by this court. . Erown and the Howell Case. uew watter upon which the juror Brown was questioned touched his connection with the case of one Howell,who had been tried in a Federal court for passing counterieit money. Brown had been a juror in the case, snd with others had voted for Howel.'s acquittal. The result was » disagreement of the jury and a mistrisl. Rumors that the Howeil jury had been approached and corrupted were current, and tae next Federal Grand Jury instituted an investigation. Brown was summoned before itund interrogated es to his knowledge of the matier, but in justice it should be added that the record before us does not disclose that his own integrity was under asssult. There was undoubtedly not enough in this to warrant the iuterposition of a challenge for cause, but section 1068 of the Penal Code con- templates also the taking of a peremptory challenge, as one does 1n this ca: When the code says that the court may for cause permit the chuilenge to be taken it means us the language has been interpreted thut it isnoi a matier of right to either party, but may be permitted in the exercise of a sound discretion (People vs. Reyuolds, 18 Cal, 128; People vs. Montgomery, 53 Cal, 576: Peopis vs. Bem- merly, 87 , 117); and as said i People vs. Montgomery, granting or refusing permission, it will not be presumed that the court has abused its discretion. As in ail mat- ters not ordered by inflex:ble rule, no set for. mula applicable to every case may be laid down 10 govern and measure the exercise of discretionary power. As each case arises its determination must rest upon its peculiar facts, and what might be an_abuse uunder one set ol circumstances mignt be & fair exercise under suother. In every case careiul regard will be had 1o see whether or not the subs:an- tial rights of a deiendant have been jeops ardized or impaired, but. if they have not, theu the ruling is not 10 by disturbed, for at the worst it could be but a technical error which the courts are commanded to disre- gard. (Poual Code, Sec. 1404 ) Having in view the na.ure of the District Aitorney’s inquiry, and Lis manifest suspicion that the juror was or had been approachable snd venal, it might well be that &s a result of the inquiry the juror was left ia a staie of exireme hostility 1o the prosecuting officer. No Abuse of Diseretion. He upon his part had falled to establish ground for & challenge for cause, and if he couid not exercise a peremptory ehallenge he would be compelied 10 try and argue his case before a juror whose attitude naturally was one of bitter antsgonism to him. It ma safely be said that, however disinterested a juror might be as Letween the litigants, Do advocate cberishing his client’s interests would willingly accept oue whom he believed .0 be his personal enemy. These obvious con- iderations were in the mind of the tzial | been by them accepted. Judge. Moreover, the defendant had not ex- hausted his peremptory challenges, Four other jurors were obiained, to noue of whom was any challenge taken by the defense, and, as has been said, when the jury was finally compicted _there remained to the defense unexercised eignt of 18 twenty peremptory challenges. The ruling by which the prosecu- tion was allowed 1o interpose the perempiory challenge worked no hardsuip 1o the defen- dant, Hisright was to a fair and impariial jury, not to a jury composed of any particular individuals. Wiere it Appears that a fair and impartial jury was obtained it is the general rule-thatan error of the courtin allowing e challenge and permithng a juror to be ex- cus d is not subject to_review. (ferritory Vs, Roberts, 9 Moni. 12; State vs. Kleuman, 33 Miun. 341; State vs. Chin Ling, 10 Or. 419; Suow v-. Weeks, 75 Mo.. 103; Thompson ve. Dougiass, 35 W. Va., 357; John vs. State, 16 Fia., 554; State v: ard, 39 Vt. 328; Wat- son 'vs. The State, 63 M., 543; ‘latun vs. Young, 1 Porter, Ala., 293; Richurds vs. The State, Nebr. 53 N. W. Pop. 1028.) It eannot be asid under the circumstances shown that any injury resulted to defendant from the ruling. or that any abuse of discre- tion is shown. (Peoj Arcot, 33 Cal,, 40; People vs. Murray, 350; People vs. Murphy, 45 Cal., 137.) The Evidence Justifies the Verdict. The contention of appeliant next to be con- sidered is that the evidence 1s insufficient to justify the verdict, and that the verdict is Ccontrary to tue evidence in this, that the evi- dence fails to show how, when or iwhere Biauche Lamont was murdered, or that the deiendant in any way was instrumental in causing her death. No small part of appellant’s argument herein is devoted (o an sttack upon the credibility of the witnesses for the prosecution. In this at- tack the personal characiers of many are ns- suiled, and_the unrelinbility of lne evidence of nearly all is 1nsisted upon. It here again becomes necessary o repext that these argu- ments touching the credibility of witnesses, eminently properto be addressed to the jury or to the Judge upon motion for a new trial, are not for our consideration. This court sits in criminal cases- solely for the correction of errors at law. If in any criminal case there be evidence adduced logically terding and le- gally sufficient to prove the guilt of & defend- is court cannot and will not disturd the determination, even under a claim that there is conflicting’ evidence which might liave raised a reasonable doubt of his guilt. The province of the jury iu weighing evi- dence and determining the credibility to beacs corded the testimony of witnesses isunder the rules of law conclusive. A Judge may not in- struct upon matters of fact. Ii & witness stould absolutely discredit his own testimony by swear:ing to Opposite statements, so that one or the other musi be false, under our laws his testimony is not of necessity to be rejected. Itis sull evidence in the cas Under such cir- cumstances the jury must receive and weighit. They are bound to 100k upon it with suspicion and distrust and may reject it, But, upon the other hand, they may as they determine accept as true one'or the other of the contradictory asscverations. Thus, upon a review of the evi- dence by this tribunkl, we may not exemine with minuteness claims that wituesses are ais- credited, or that their evidence is unworthy of belief, or look to see whether some other conclusion might not have been warranted by the evidence. (Blythe vs. Avers, 102 Cal., 254). Ad questionem juris respondeant judices, ad Qquesiionem facti respondeant duratores—and than this no maxim of the old Jaw has been more carefully preserved in its integrity under our system. Where it 15 not clear that the verdiet must have been rendered under the influence of pession or prejudice, our examination of the record is only to defermine whether legal evi- dence has been offered suflicient to warrant a conviction, for the verdict of the jury is their declaration that it is this evidencé which has (Peopla vs. Ah Loy 10 Cal, 801; People vs. Vance, 21 Cal., 400 People vs. Strong, .30 Cal., 151; People vs. Dick, 214; Peopie vs. Manning. 48 cal, People vs. Estrads, 53 Cal., 600; People vs. Mayos, 60 Cal., 597; People vs. Al Jake, 91 Cal., 93} People vs. Freeman, 92 Cal,, 9.) Facts of the Murder. The following facts were presented in evi- dence: Upon April 3, 1895, Blanche Lamont was living with her aunt, Mrs. Noble, in the City and County of San Francisco. She was in person rather tall and slight, and weighed about 120 pounds. Her age was 21 years. She was a schoolgirl atiending the High school, and upon the morning of April 3 left hor home, with her st'ap of books, to join her classes. She met defendant while on the way to school (s s bis testimony), and be accompanicd her for & part of the way. She was at -school during the day’s session, and at its close, about 3 P. X, 16ft with the other pupils. Shedid not reiurn bome, and never After that day was seen alive. Shortly after 9 o'clock upon the morning of April 14 two police officers and the Jauitor aitempted to open the door leading to ihe belfry of the Baptist Emmanuel Church. They were prosecuting a seatch for- Blanche Lamont. The knob of the door was gone and the lock mutilated so_that the janitor's key could not open it. Toey forced the door and one of the officers ascending the stairs found the body of girl lying on the top lanaing, in the southeastern corner of the beifry. It was that of Blanche Lamont. The body was naked, lying upou its back, the feet close together, the hands folded upon the breast, the head inclined a littie 1o the left. There were two small blocks, apparently em- | ployed to hold the head in an upright posi- tion. Decomposition was well advanced, and by medical testimony life had been extinct for about two weeks. An examination ana autopsy of the corpse revesled seven finger- nail incisions upon the lefuside of the throat and five upon the right, » depression of the larynx and s congestion of the trachea, larynx, lungs and brain. Strangulation was the cause of death. A search brought to light the clothing and apparel of the girl hidden in and about the rough underwork of the belfry and also her bookstrap and schoolbooks. Arrest of Durrant. Upon April — the defendant was arrested and charged with this murder. At that time Durrant was a young man 24 vears of age, a student of the Coover Medical College of San Francisco, and a member of the Signal Corps of the National Guard of the State. He was interested in religious work, Was an_attend- ant, it 1ot a member, of the 'Baptist Emman- uel church, was a member of the Caristian Endeavor Society, was assistant superintend- entof the Sunday-school, and was librarian of the church library. As is abundantly testified 10, he bore the esteem of his feliows as s zeal- ous, earnest and upright youug man of com- mendable character, and of sincere Christian life. When arrested he was upon service of the Signal Corps to.which he was attached. TUpon his trial his defense was an _alibi. He declared that he had seen Blanche Lamont in the morning of April 3, when she was on her way 10 &chool, hut never again thereafter; that he himseli had gone to his medical ccllege, and there had attended a lecture at the time when by the claim of the prosecution the girl had begn by him murdered in the church. Upoa the part of the prosecution it was shown that Blanche Lamont was a regular at- tendant of Emmanuel Church, and belonged to the soclety of Christian Endesvor, of which Durrant was also & member. The two were well acquainted. Indeed, they seemed to have stood in their intercourse upon ferims of cordial and trusting friendship. -They met at socisl and religious gatherings, to or from which Durrant frequently escoried the girl, in company with _her sister and othertof their soclal eircle. Durrant had a key to the side door of the church, and was thoroughly fami- liar with the builaing ana premises. Some Important Witn Mrs. Hugh Vogel lived across the street from the school which Blanche Lamont was attend- ing. She saw defendant a little after 2 o'ciock of the atternoon of April 3, in front of the schoolhouse, walking up and down, apparently iu waiting. ' When school closed she noticed two girls coming out together. Oue of them carried books in & sirap. ‘They walked to the corner of the sireet, where they stopped_for acar. The defendant joined them as they were about to board it. “One of the girls went inside. The other sat outside upon the dummy. Tne defendant joined this girl and seated himseit beside her. Minnie Edwards testified that it was she who accompanied Blanehe Limont from school that aiternoon, They wero joined by Durrant at the corner. Blanche Lamont and he sat together outside, waile she founda seat within the car. B.wnche Lamont had her schoolbooks with her. Mrs. Alice Dorgan at the time of these occur- reuces was & pupil of the same school. Upon that afternoon she, t0o, saw Blanche Lamont upon the dummy in company with the de- fendant, May Lenigan, another of the schoolgirls, also saw the two upon the dummy. This was from five to ten minutes after 3 o'clock. Mrs. Elizaveth Crossett had known the de- fendant for about four years. Beiween hali- t3and 4 oclock of ‘this afterncon, while she was Upon a Valencia-street car traveling toward Twenty-8ith street, she saw deiendant. He was seated upon the dummy of her car in company witea young lady whom she did not know, but whose description answered to thatof the murdered giri. The two were in conversation and left the car at Twenty-first or Twenty-second street and walked in the direction of Bartlett street. The Emmanuel Baptist Church is situated upon Bartiett sircet, hetween Twenty-second and Twents- third. Martin Quinlan, between ten and twenty minutes past 4 o'clock of this afternoon, the defendant and the young lady whose de- seription corresponded 1o that of the giri, and who carried a loose package in her hand by a string or strap, walking along Bartlett street from Twenty-secoud street toward Twenty-third street. They were upon the same side of the street as the church and were waiking toward it, Mrs. Caroline Leake lived upon Bartlett street, almost directly-opposite the church. She had been an stiendant there ataivine service for many years. She had known de- fendant for the past three or four years. She Theodore Durrant Receives the News While at Dinner That He Must Hang. also knew Blanche Lamont. Between 4 and 4:30 of this afternoon she saw Durrant and a young lady pass though the gate into the churchyard and on toward the side door. His companon she could not identify posi. tively, but from her_appearance thoughtat the time that it was Biatiche Lamont, or an. other young lady of similar size and height This young lady testified that sne was not with defendant at any lime upon that day and no claim is made that she was. George King’s Testimony. George King was s member of the church and its organist. He knew defendant and the two were very friendly. At o'clock on this afternoon he entered the church by the front door, lerting himself in with his key, He no- ticed & strong smell of gas and went forthwith to the library to see if it was eseaping there. He failed to find the leak. Thence, closing the lbrary door, he proceeded directly to the Sunday-school room and sitting at the piano began to play. He plaved for two or three minutes, when defendant came through the folding dors to the rearand stood looking athim. ©I asked him what was the matier, because of his pale condition. He had his coat off and his hat off. His hiir was somewnat Qisheveled. He came through and then told me that he had been fixing the gas above the auaitorium and had been overcome by it 1o such a degree that he could hardly descend | the ladder. He seemed 1ll. He handed men 50-cent piece and asked me to go and get some brotno-seltzer.”” Witness procured the seltzer and upon his return found the defend- ant either stending in the Tobby or lying upon ihe platiorm in the Sunday-scnool room. He thinks, however, that defendant' was lying down. ' Defendsnt took a dose of the selizer, which seemed to neuseate him somewhut. The two sat and talked together for a few minutes, then went upstairs to the choir loft and carried down & smull organ. Deiendant appeared weak aud hed to stop two or three times to rest. Then they went to the library door, which Durrant unlocked. and entering ut on his hat and coat, which were lying on a ox in the corner. Witness had not 8cen the hat of coat when he went into the library the first fime that afternoon. They then left the church and walking some distance together separated and went to their Tespactive homes. It was then about 6 o'clock. Upon the morning of April 13, ten days after the disappearauce of Bianche Lamont and one day before_the discovery of her body, her aunt, Mrs. Noble, received through the meil a package which containgd aiiof the rings worn | by her when she let her home. The rings were inclosed in a copy of the Examiner, and upon the paper were writte: the names of | George Klng and Professor Schernst:in. King was & common friend of Durrantand Blauche Lumont. Professor Schernstein was her music teacher. Neither of the two wrote the name. The paper and wrapper were exhibited 1o the jury, tegetner with admitted exemplas of defendaut’s writing. Sale of the Ring. Upon a morning between the 4th and 10th of April Adolph Oppenheimer, a pawn-broker, was offered for sale & goid ring contsining & diamond chip. The ring was identified as one worn by Blauche Lamont at the time of her disappearance. and subscquently returned to her nunt through the mail. The person offer- ing the ring for sale was the defendant. Wiliiam Phillips testified that some fime in the first. part of April he saw defendxnt stand- ing in front of Oppenheimer’s place between 10 and 11 o’clock in the morning. Dr. G, F. Graham wass a student and class- mate of Durrant's at the Cooper Medical Col- lege. From 3:30 to 4115 P. M. of April 8 Dr. Cheney of thut college deiivered a lecture to his class upon the sierihization of milk. Dr. Graham attended that lecture and took notes of it. The defendant, in support of his alibi claimed to have attended the lecture, and like wise to have taken original notes, which were admitted in evidence. Dr. Grabam testified that aiter Durrant’s arrest, aod before the trial, he visited him with @ friend. Durrant requested his companion to withdraw that he might talk to Dr. Graham alone. When he had done so defendant iniormed Dr. Graham toat he had no notes of the lecture, and re- | quested the doctor to leud him his, saying that if he could get them he couid establish an alibi. Defendant told him that he couid take the notes to Durrant's house, get his book and put them in ir, and the ook could be brought fo him in jail, or that the witness could com- mit his notes to memory, come to the jail and repeat them to him. Summary of the Evidence. This summarization of the evidence is not designed to bo exhaustive. Much that is cumulative upon the part of the people is omitted. No analysisis made of the aiibi of the defense, or of the claim of the proszcution that, when not completely demolished, it stauds upon the unsupported word of the de- | fendant. Enough has been set forth to show that the verdict and judgment finds support from legal and sufficient evidence, and when that point is reached the inquiry of this court comes 10 an end. saving in ihose exceptional cases, of which this is not one, whera the evi- dence against the detendant is so slight as to make clear the :uference that the verdict must huve been rendered under the influence of ghslon or prejudice. (People vs. Vance, 21 | al., 400; People vs. Manning, 48 Cal., 335.) By this evidence the defendant and Blanohe Lamont, she with her strap of books, entered the Ewmanuel Church at about half-past 4 o'clock in the afternoon of April 3. At 5 o'clock defendant is seen there, and explaing his distressed condition as caused by tue in- halation of gas. At 6 o'clock he leves the church. Blanche Lamont is never again seen alive. Two weeks uiter her nude and decom- posing body 1s found in the church. She had en sizangled and her corpse dragged (o the belfry. The clothes which she wore on leav- ing home are secreted about the floors and rafters. Her books are found, still tightly strapped. Tiese facts, with the others set forth, are suficient to justify the hypothesis | of defendant's guiit and to exclude every other reasonable hypothesis than that of his guilt. Such evidence Is cleary sufficient to warrant and uphold the determination that the girl was strangled to death at-the hands of the defendaut upon the afternoon of April3. The evidence of defendant’s previous good character, 5o fully established, was & ¢ircum- stance making strongly in his favor. We are asked to say that the jury disregarded it in reaching their verdict, but this we cannot do. Tney were fully and fairly insiructed upon the matter, and it must be presumed that the instruetions were regarded. Motivg for the Crime. Appeilant further urges that the evidence fails to Aisclose any motive for the crime; that proof of motive is essential to Support & convictior, and that, therefore, the judgment must be reversed. If by this is meant that proof of a particular motive must be s clear and cogent as the prool of the crime thé prop- osition finds no support either in reason or authority. To the actof every retional human beiug pre-exists a motive. i every criminal case proof of the moving cause is permissible, and oitentimes is valuable; butitis never es- sential. When the perpetration of & crime has been Rrought home to a defendant the mo- tive for its commission becomes unimportant. Evyidence of motive is sometimes of assistance in removing doubtand completing proof which might otherwise be unsatisfactory, and that motive may either be shown by positive evi- dence or gleaned from the facts and surround- {ugs of the act. The motive then becomes a circumstance, but nothing more than acir- camstance to be considered by the jury, and its absence is equally a circumstance in favor of the accused. to be given suct weight as they deem proper. But proof of motive is never indispensable to & convie- tion. (People vs. Bennet!, 49 N. Y., 13 Pointer vs. United Sta tes, 151 396; John son vs, United States, 157 U. 8 ; Clifton vs. State, 73 Ala., 473; Sumner vs. Sate, 5 Blackf. Ind., 579.) The wellsprings of humsn conduct are fufinite, and infinitely obscure. An act may owe its performance to compiex ana mule titudinous promptings. Who knows each chord, its various tone, Each spring, its various bias. Or the deed may be due to a single motive, 50 black, o horrible, so monstrous, that even whn the books uf the learned ciiminologist have been studiv ! the no'mal mind still shriiks from a belief in the possibility of its existence. In this case, what the motive may have been it isnot thg province oi this court to inquire. Attitude of the Press. Durine the tmpanclment of the jury, tke defense made spplication for citations ngainst certain newspaper editors to show cause why they shouid not be punished for contempt because of their publications relative to the trial. The court refused 10 interrujt the pro- ceedings to consider the matter tuen, and post- poned action, stating that ata proper time it would upou request take such steps as might be contemplated by law. Again, during the impaneiment of the jury, the application was renewed, aud the courl’s response was the | No further request was made. and there same. This is the matier was ellowed to stand. urged as reversible error. - While a contempt proceeding for convenience ix presented in the causeout of which it grows, itisa separate aud distinct matter, aud no art of the original case. (EX parte Ah Mon, 7 Cal., 196.) Fower to punish for contempt is vested in gourts for theif own protection. 1ts object and purpose is to insure respect for their rules and orcers, obedience to their pro- cesses, and fredom from disturbance or inter- ference with_the due and regular course of their proceedings. (5 Am.and Eng. Enc. of L, P.780; Thompson ou Trials, Sec 124.) A publication during the course of trial which reflects on the court, or assails the liti- gants, or seeks to intimidate witnesses, or spreads before the jury an opinion upon the merits of the controversy, or threatens them with public_odium, or aitempts to dictate the decision, or in any improper way endea:ors 10 influence the determiuation, is unquestion- ably a contempt of court (in re. Shoriridze, 99 Cal., 532); buiat the same time & litigant has noabpeai from the action of the Judge in desling with the matter. The litigant may not control this process, which is des gned ot the protection of the court, and which is to be invoked ornot, ns its discretion may diciate, but which should be employed ireely where | the interests of justice or tne rights of liti- ganis demand it. “The doctrine is well nigh Without _exception that the issuance vel non of contempt jroceedings lies in every inxtance in the scund discretion of the court.” (4 Enc. Plead. and Prac., p. 774.) If by tne faiiure of the court to proceed ngainst the editors orany of them defendant has failed to obtain the fair and impartial trial to which the law entitles him, he may make that appear upon his mo- tion ‘for & new trial, aiid the question wiil thus come before us properly for reyiew, In this case the question is raised in the manner indi- cated. and it will be considered upon the mer- 1is in its proper place. Rulings of the Court. Numerous objections were made and excep- tions reserved 10 the courV's rulings in admit- ting and rejecting evidence. - These rulings have been subjected to critical examination, including those which in appellant’s brier re- ceive no discussion, but are grouped by num- Der and coilectively ussigned as error. While none, therefore, have been ignored, we will here consider only such es merit particular mention, a. Dr. Barrett was shown_to be a_practicing physician and surgeon. He perfirmed the autopsy upon the body of the dead girl, gave eviduuce of its condition, and expressed his judgment that the cause of death was sirangu- lution. He was then asked, “Wnat in your judgment was the means used {or the strangu- lation ?” Objection was made upon the sole ground that no proper foundation had been laid for the questior. The objectioh was vroperly overruled. The objection does not present the point that the fact sought to be elicited was not the subject of expert inquiry; nor is that propuition argued in the briefs. That being conceded, the objec- tion that a proper foundation for the question nad not been Iaid, could not be sustatned, when the witness whs & physician and surgeon, | whose competency had been abundantly shown. The witnsss answered: “I think the me:ns used were hands.” The appellant in- sists that the court erred in Terusing to strike this answer out, as the question cailed for the vitness’ judgment, and he only gave his thought. * The expressed thought of the ex- pert was clearly his judgment. b. The clothing of Blanche Lamont admitted s exhibits was draped upon & dressmaier’s frame, which itself was not in evidence. It was not claimed that the frame represented the height, size or figure of the girl. Error is predicated apoa ihe use of the frame and the refusal of the court to order the garments fe- moved irom it. Tne frame eafforded a con- venient mode for displaying (he wearmg ap- parel, concerning which much evidence was taken. We ean discern no more imptopricty or irregw.arity in the plan pursued than if the garmonts had been hung upon a clothesline or huddled into a corner. ¢. Mrs. Vogel, cross-examined by the defense and asked how she fixed the date” upon which sne saw Durrantas bmlu‘Am'll 3, replied that it was because of & postal card which her hus- band receivel that day and which had been directed to 732 Natoma street. “That place we own, but 1s occupied by tenants. I have never lived there.” +Q—Well, is that your property or your hus- band’s property? *‘A.—What he got is mine; what I got is hi +Q.—Do you understand my question? I asked you in whose name does the title to this property on Natoma street stand?”* Here the Judge interposed, and stating that he could see no possible materiality or relevancy to the question, instrueted the witness that she need not answer. There was in this no error. In- deed, it {s the duty of a court, and one not oftenl enough performed, 10 cxpedite business by curtailing cross-examinations upon imma- terial and irrelevant matters. We cannot per- ceive the slightest pertinency to the i1quiry. No question of right or title to property \as even collaterally or remotely invoived, and had the witness answered, the subject being immaterial matter educed on cross-examina- tion, the defense would have been bound by her ‘statement, without right to jmpeach it, even had it been false. (C. C. P., Sec. 2408.) d. Mrs. Crossett declared that to the best of her recoilection the young lady whom she saw with defepdant wore a broad-brimmed hat, light, with large bows and feathers in front. She did not recognize the hat exhibited to her, which had been proved to be theone worn by the dead girl. ~She was then asked: #Can you tell whether it was .a hatsimilar to that this young jady wore?” Objection was made that the witness had already stated that she could notrecognize it. The eourt permitted the question, suying: “I think they havea right o ask whether there is any similarity, and, if so, what similarity there is between the hat shown to her aud "the hatshe saw the young lady wear.” The maniest soundness of the ruling renders comment UNNEeCEssAry The same witness was 1nterrogated on cross- examination as follows: “Q.—Have you seen him (Durrant) at all since last September, 18947 ’ “A.~Yes, sir* “Q.—That is, you imagine you have? “Mr. Barnes—I object to the question. ““The Court—That would not be proper; The lady is telling what she hasseen. Ido not | tnink when & lady savs ‘I have seen him since | September’ that counsel has a right to say | *You imagine youdid.” * * * Iidisconceris | ti.e witness and throws a very serious doubt upon the statement. You should have the right to cross-examine this witness and all ther witnesses, but I do not concede that this & praper way tc doit. Mr. Deuprey—We will have to take an ex” ceprion. “The Court—You_have your exception, cer- tainly, to every ruling of the court, but I say that this and all witnesses in this court are to be treated fairly. foiMr. Deuprey—1did, sir, treat this witness airly. 2Tho Court—The court does not belleve you ave. | _“Mr. Deuprey—I take an exception to the | court’s remarks.” | Upon this ruling and these remarks error is lafirmed. It is the right of a witness to be [ protected from irrelevant, improper or insuit- | | ing quest'ons and from harsn and insulting demeanor; to be deteined only so long as the interests of justice re 10 be examined only as to matters legal and pertinent to the issue. (C. C. P., Sec. 2066.) The protection be more often extended by Judges with a sal- utary effect upon judicial proceedings. The witness. a lady, had testified courteously and the date named. The interjection of counsel was not legimate cross-examination and jusi. fled the interposition of the court. E. Blanche Lamont's sister Mand was living with her at the time of her disappearancs. She was shown a picture of Biauche taken | about three years before tne dateof her testi- mony and was asked whether or not the pho- | tograph was a fair representation of her sister as she was upon Aprii 8. Over objection and exception she was permitted to answer. It is a general rule without contradiction that | where the photograph is shown to be a faith- | ful representation of what it purports to repro- | duce it is admissiblo as an appropriate aid 10 the jury in spplying the evidence, and this is equally true whether the photozraph be of persuns, things or places. (Rice. Crim. Ev, p. | 154; Wharton, Crim. Ev., Ninth Ed.. section 544} Thompson ou Trials, section 869) The | fact’ that the photograph’ was taken two or | more years before the date of the wirl’s disnp- | pearance did not justify its exclusion after the testimony of the sister that it fairly repre- which the Code thus affords to witnesses could | positively that ‘she had seen defendant since | sented Bianche at the time of her disappea: A ing’s Testimony Dissected. R. King, upon direct examination (of‘u?: ;‘;%:al», teatifeq hat when ne returned to the church after buying the bmnxo-schz‘er for Durrant he found Dhim either smnumsg in the iobby or lying on the platform in the Iu::- day-sehool Toom, bt hiu wmmex.:).'cger::ccgfig cmember. For the purpos: . jection and exception by the cefense, vius per- Initied to read the following question an swer from the testimony 01 thesame witness hon the preliminary cxemination in the lice Court: PR CVhen you returned what occurrcd “‘:f’?“l met Durrant in the vestibule o]: !:: church by the front door and he ook (e selizer and took a dose of it. He weut the kitctien to do that.” i Tne wituess respouded: “I did so testify. h{ don’t think that testimony was COIT:Cl the cross-examination I was asked 1f he was not lying on the platiorm. and that creaied & doubt in my mind, and now I am not sur eitner way.”” The witness would have had the undoubted right to have read his testimony given upon the examination, for the purpose ofrefreshing his memory. (C. C. P., Sec. 2047.) enst be regarded ns | | Such a transcript ma - at ienst ] a .rivate memorandem. (Reid v. Reid, Cul., 206.) Whi n a witness called by a party | 1ails'to testily to matters previously withia [ his recollection, or gives evidence i upparent | variance with that formerly given, it s not | incumbent upon tne party produciug the wit- ness to wait ;or the assaults of the Cross- amination to expcse seeming inconsistenci avd discrepancies. While he may not impeach | his witness (suving under ¢ rtain exceptional circumstances) he may with propriety reiresh hisrecollectiot,to the end tiat the witness and his present cvidence may both be put h’u'.‘y nd in their proper light vefore the jury. The answer above quoted sffords a good illustra- tion of this. The witness admis the discrep ancy between his former and his present testl- mony, and candidly expa:mns it as arising from & doubt created by hls former eross-ex- amination. There was hicre no impropriety, and no injury to defendant. The Janitor's Statement. G. The jenitor of the church was asked, upon dircet-exnmination, if any one besides himself had a key to his room. He replied: | “I have somotimes left my room door locked and found it open; therefore, I conciuded that some one hnd & key to it.” The refusal of the Ccourt 1o strike this answer out is assigned s | eror, “because by 4ts nature'the answer only | had & tend | jury,” and in these objections. H. The body of Blanche Lamont was found nude and prone upon its back, with a small wooden block upon eac side of the head, ap- parently used to hold it_in an upright posi- tion. Dr. Charles E. Farnum was called for the people and testificd that he was the uemonstrator of anatomy at the Cooper Medi- cal College, which deféndant attended, and that wooden blucks were used for purposes in relation o dend bodies. He was next askea: “For what purpose are they used?” Objection was made that the question was irre.evant, immaierial aud incompetent for any purpose. The live of proof sought to be established by the prosecution ws quile pparent. It was an endeavor to show by ihe demonstrator of anatomy under whom defendant was study- ing some technical and peculiar use of wooden Dblocks in conmection with dissecting-room | corpses cimilar to the use made of blocks about | the herd of the body of the dead girl. The | court could not foresee the answer and prop- | erly overruled the objection; for if the propo- sition could pe establisned, it was clexrly com- petent for the pecple to do s0. In this, how- ever, there was & signal failure. The auswer disclosed no possibie cormzction between the facts in the case of the deud girl aad the cus- tom of tne dissecting-room. Whiie tne ques- tion was pertinent, the answer therefoie failed 1o turnish the required proof. It would uu- questionably have beem stricken out on mo- tion of the defense. But no motion was made— doubtless because the answer not only worked Do injury to the defense, but was an affirma- tive advantage to it. A Hypothetical Case. The record next discloses the following ques- tion, objection, exception and answer: Q. Lét me put a hypothetical case to you for « moment: SBuppose you bad in your cus- tody or care & body which had bu: recently died, and it was still almost warm with Lije. You' are_scquainted with anatomy and sur- gery, and you know that in a certain length of time rigor mortis would set in, when the body ana the members of the body would become stff. Now, if you wanted to keep the nead—~ the face sad neck—in an upright position, in a straight position, not turned to one sidé or the other, what would you do in order t0 keep itin that position ? *Mr. Deuprey—We object to that as not a hypothetical question involying any elements in this case, “Objection overruled. “Deiendant excepts. +A. I would place it first in the position in which I wanted it, and if it did not remain there I would prop it by supporis 1n the de- sired position. My lust answer is what I as an individual would do.” The objection, it wiil be noted, is not npon the grouna that the inquiry is not & subject of expert evidence, but 1s based upon the one proposition “that the hypothetical question does not iuvolve any elements in the case.”” In strictness, therefore, this consideration might begin andend with a disposition of the single ground of objection urged, and when it appears, as by fair inference it docs, thats me oue had murdered the girl, and that some one was present with her still warm body, and that some one placed the biocks for the pur- pose of holding the head upright, it certainly caznot be said that none of the elements of the cise were involved in the hypothetical question. Indeed, while counsel for the ap- pellant, arguing this proposition, strenu- insist that, *“There is no evidence | in the record that any person wanted to keep I the hexd, the face or the neck in an up- | right or any position, or in a straight posi- tiun, not turned to onme side or the other; there was nothing in the way of circumstance or in the way of fact established that would permit the presumption of the conditions lorced into the so-called hypothetical ques- tion,” we need_but tura back four pages of | their brief to find the curiously destructive dec aration that, “The fancy struck tne mur- derer of this girl to place the head in a cer- tain posiiion—and he did the most natural thing in the world, picked up a couple of smail blocks, evidently lying near, 10 hold the bead in the position desired.” Moreover, a hy pothetical quection need not embrace all the facts in evidence, or even be Iimited to facts proved. It musi be based upon facts in evidence, but may be addressed 10 any reasonable theory which may be taken ot them. In Filer vs. N.Y.R. Co., 49 N. Y., 46, it is is well said: “It is the privilege of counsel 1o assume, within the limits of the evidence, auy_state of facts which he claims the evidénce justifies and base the opinion of experts upou the facis thus assumed. The facts are assumed for the purpese of the ques- tion, and for 1o other purpose.” In'“Thompson on Trials” (Sec. 604) the rule is thus aptly and succintly stated: “Tne rule then is that the hypothetical questions must b based either upon the hvpothesisof the truth of all the evidence, or upon & hypothesis ° g NEW TO-DAY, LEADERS This Week. | Breakeast Sers Very Pretty, and such Cueap Prices, EVERYBODY €N AFFORD ONE Lo b L LIS U B LR persons, quality warranied PIECES Handsome Chrysan- 4.75 o mings in Gold, complete for six persons, rich and hand- Winning Prics. Given Free: MONEY SAVING STORES: 1344 Market st. 146 Ninth st. very best.... 5“ themam Decoration, Gold II- some, quality warranted very g A Nice Present to Each (u 2810 Mission st. 218 Third st. .00 prset PIECES Autumn Wild Flo er becoration, with Handles and = Goid mings, very pretty, compl for 1X persons, best qualit warranted. . Newest Shapes, PIECES Beautiful Summer. fuminaied, Gold Hundles and 5 best.... r“eA Omer. OPERATING time Decoration, Gold Ensm- eled Handles and Gold Trim- mings, complete for six per- sons, warranted best quality, Gold Trimmi; , & real gem, comp.ete for s1X persons P1ECES Apple Blossom Deco- ration, Handles and Trim- TEA, DINNER AND : BREAKFAST s ETS. Richest Decorations, —AT— 1 OO STORES ¢ ENABLES US TO SELL Very Cheap. (rreat American [mporting Tea (o 140 Sixth st. 2008 Fillmere st 617 Kearny st. 965 Market st. 1419 _Polk st. 3006 Sixteenth st =31 Montgomery sve. 104 Second st. 833 Hayes st. 3285 Mission st ~ B2 Market st. (Headquarters), S. F. sog3 Washington st. 616 E. Twelfth st. 08 Ban Pabis ave. - 9i7 Broadway, Oakland 1355 Park st., Alameda. TUESDAY. UESDAY............. MARCH 9, At 12 o’clock noon, AT OUR SALESROOY, 638 HMARKET SI. $1320 Fer Annum. 8. side (Nos 1435, 1437, 1450 and_1441) of McAllister st., 87:6 feet K. of Scott—Handsome bay-windo~ bulldiigs of 4 French flacs, with m. ern improvements: 1 fine condition; with hage- ment; cement walk; sireet in bitnminous pave- t ment; McAllister-st ' and other cabies: examine this foran investment: lot 50x100 feet. 1897, Pacific Heights. | S. line (Nos. 2217 and 2221) of Jackso: . 130:6 fest W. of Buchanan—T w0 cottages I:nwf)xn the property: eiegant location for a fi: residence : gement stone walk ireet In bliuminous rock: & ar lines: examine this for a cholc. : double lot, 50:6x100x127 feet. . 1 aenees Presidio Heights. SW. cor. Sacramento aud Wainut sts.—Bay- windowed building: = French fii(s of ¥ asd 5 rooms: siore and 4 ronms: full rents, $80: cement wak and bitumiuous pavementon Sucramen.o 8t.: Sacrameato-si. cable: corner lo, 28x100 feet, Seventh-Street Property. SW. line (Nos. 414 and 446) of Sev enth st. of Bryant—Fron: bulding, 2 French fla's: rear buliding, 1 tenement: fuil renis, $33; comen walk: siree: trock: Bryani-si. e ectric cars: low 25x85 feet. et Castro Heights Residenc W. line (No._1020) of Castro st., 185 feet S 23d-Modern 2-story bay-window rasidence of & rooms and bath: handsomely decorat:d aud w. pa- pered througnont: brick foundsiion; high pia tered busement: stone sidewaiks al. in fine condl: Continued on Eleventh Page. | easy to find of good stand in nervous Kidney or of the female of all other remedies. DR. SANDEN—Dear Sij ‘When I bow, b work and tortured with the idea that the drelieq nothing of that Kind cou a do ; DR. SANDEN’S there is the slightest chance of cure. wey. | men who claim to have been cured by i, for they are men ing and unquestioned honor among their fellows, whether troubles, which medicine canno! reach; in Rheumatism, otner organic weakness, loss of manly power or troubles sex, Dr. Sanden’s Electric Belt ANOTHER WONDERFU ht your Belt I had \0h, bein: broken down entire.y: phySica ly and mentally incay ‘was 10 hope for me the t me. Ihad ried so many doctors without deriv.ug auy good result iythins for me. Now, §i. Z00% 1095 altmy work ab it showrd e S00e. aod rend 2ol to work as It shou one, tor cheerfully to any one affliots1 a3 [ was. . ¥ours trate. - oY i0ing. [ wil recomm Foieman 8. Nicholss Ho.el Laundry; residence §35 Castro street, San Francisco, Offers to sufferers a means of cure which is certain in its results. If you have tired Sanden’s book, “Three Classes of Men,” free, sealed. SANDEN BELECOCTRIC CO. 632 MARKET ST., OPPOSITE PALACE R Office hours—8 A. M. to 8 P. 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NE. cor.of Army and Noe s's —Good view: a large corner 10t 100d specalation: see tois; miat be i bie: lot 80X 114 feet. Western Addition Residence Lots. W. 1ine of Iaguna st., 30 aid 80 f-e: N. - bard—2 residence 10ts iear the new boutevard oo Government reservation; 10ts B0X110 fe -t euch. 15th Street, ~ear Market. S. line of 15th st., W. of Noe—2 iots. ail rea h_fl“d upon: on'y 115 blocks from M.“:“dr“lfi pieasau: surroundlugs; rare chance ior & builder, must be sold; Castro and Fill ; fnuat e soid; : Qg mora st. roads; Business Lot on 24th Strect. .line of 24th st., E. of Folsom—An elegant business iot 10 improve with 2 stores. beluw s id Tench flais above: street in basait r.ck; several eleciric roads; large lot. 37:8x100 ieet. Ucean View. S. line of Sagamore si., W. of Capital—2 }, Deur steam depo. and electric roads. © il ready 1o build upon; pleasa g i balid upon; pleasant surcvundiugs: large .ot, 502 Ashbury Heights N of Ashbury ani 18:h ste—3 elegant residénce lots, commanding a fine marine and i 1and view: a I'ready (o bulid upun: beauiifu loca- tlon for & home; examiue thise: Ashuury si. sew- ered: &, F. una 8 M. electric real: curner of, 35% 90; Inside lots, 35 by 90 ana 100 -eet. EASTON, ELDBKDGE,C co., 638 Market st. Auctioneers. lh-d‘nv':;‘ Pein in my bick m an et 1 ¥ 0f them th I never feit better § m; T ir and thorough trial of n my Il 'nlgl yecfectly vo G. W, ARMSTEIN. D0 ELECTRIC BELT It never fails when of drugs try it. Read Dr. HOTEL, SAN FRANCISCO. tol. Los Angeles Office 204 Broa: . Colo., 933 Sixteenth street. o Droa* DR.MCNULTY, YHIS WELL-KNOWN AND RELIARLE OLL ’lSmllnmPflvnle.xor\-mlilminn K Dtuemeulllanmlm Manly Power restored. Over 20vears’ experience. Send for Book, free. Patients slilrlflib‘\.l Home, T.H'mu reasonable. Hoors, 3 ¥:6:30 to8.Wev'es, Sundays, 10t 12 Consul tionfree and sacredly confidential. Call or addr: P. ROSCOE MeNULTY, M. D., 26} Hearny Street, San Francisco. Cal. RANOLA RANOSE ARAMELy EREAL LTH:Foon'Co LENA:Cat