The San Francisco Call. Newspaper, July 15, 1902, Page 4

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THE SAN FRANCISCO CALL, TUESDAY, JULY 15, 1902 Governor Does Not Remain to Hear His Arraignment e ST Only Attends the Court When His Lawyer Speaks & Continued From Page Three. that which provides for the writ of If there be any advantage it is the of & writ of habeas < A unfortunate enough In this D: ve had a_Superior Judge of t c n Francisco disagree with 1ay iews in part, and my friend on the other side was unfortunate enough to have the same his views in part, I am n that law-makers of our they said by section 1454 »de when they said that evi- | heard in relation to the caus n by any one, by any person but I still believe that , when it says prison or re pretense of the writ, muy he material facts rn, any fact io tied to must hear such proof inst such imprison- vor of the same and party as the justice of the and have full power and e and compel the attend- by process of subpena and at- éo and perform ail other ary to a full STRIPS PETITION OF ITS VERBIAGE Tells Why Libel Suit Should Be Tried in Court of This City. It was upon that we based our application to Judge Cook. He saw fit to disagree with und t the court had mo testimony to controvert the was made at Los Angeios. gued that before Judge Cook, Coun- reves t without any ‘such provision the statuf at your Honor has the power and the authc to determine in advance for he Police Court, not only he shall hear, but as to the de- hich he shall make upon those The petition sets forth that one who is by Jaw a committing magistrate had a complaint filed before him for the crime of libel, Upon | the face of that complaint was shown the Surisdictional 1 to wit: that the publica- tion office of the newspaper was within the city and county of San Francisco; that the defend- ants were brought before him and that they were charged with this particular crime. If Justice or & committing magistrate has juri aiction o fe i =diction be given to him b: the law to determine that particular class of and if bis jurisdiciion can omly be ousted by virtue of some fact that is made to appear before him upon the hearing of that cular case, then we say that the writ of Prohibition must fall because it is to him that that particular state of facts must be addressed, and not to another court having jurisdiction to hear upon a writ of prohibition. The petition and its allegations, stripped of I verblage and irrelevant matter first alleges Fritz is a Police Judge in the city of and county an Francisco; second, that on a date therein named Louls P. Boardman ap- | peare: before him and lodged an information the defendants Leake and Spreckels € them with the crime of libel; third, the complaint on information ‘alleged that ch libel was published in the San Francisco Call and that the principal publication office of The Call was in the city of San Francisco; fourth, it alleges that sald complaint falsely t Henry T. Gage resided at S attached to said complaint of a_complaint charging de by Henry T. Gage in th- was a cert me offense, of Los Angel sixth, that said com- in sald Police Court of San Francisco was a result of ollusion between Board- 1d the defendants. Does said comp the Police Judge has jurisdiction to determine before him? Section 811 of the . vides that when an information Jaid before a magistrate of the commission @ public offense triable within the county examine on oath the Informant or = and any witnesses he may produce teke their depositions in writing and cause them to be subscribed by the party making them When a complaint is lodged before ’rom- mitting magistrate char~'~~ any one with a crime triable within the _.ty then the duty is imperative upon that magistrate to examine that party and his witnesses and to issue a warrant 1f the facts justify it. Who is to determine the question? Is it to be determined by a person who 1€ clothed under the law and under the constitution with ihe power of Getermining that particular thing whether that power be judicial or otherwise. The constitution provides who ghall be magis- trate The law provides what & magistrate 1l do When any one—the statute does not re- e that it shall be the person who has been ck, whose money has been taken from him or whose house has been entered and his prop- erty taken by the crime of burglarly—but when any information is lodged before any magistrate charging the commission of any crime that o trisbie within the county of that magistrate it is his duty to examine Into it, and It is just ag much his duty to examine the question as to whether or not it is triable within his county es it is his duty to examine into the question | whether or not a crime has been commitied, and there is reasonable cause to suppose that a cer. tain person committed it. 1 call that par- ticularly to your Honor's attention, because we shall see as we go further the bearing of it. Does the complaint before Judge Fritz show that this cause is one which is triable within the city and county of San Francisco? This guestion of criminal libel has had a great deal of attention, mot only in the courts of this State, but in the latter part of the year 1878 and the first part of the year 1879 a ADVERTISEMENTS. Brewed from carefully select- ed barley and hops — never permitted to leave the brew- ery until properly aged. Thomas W. Collins & Co., Wholesale Distribu- tors, 105 California ot San Francisco. mulnd_unkunqbu'ogthg-uho ve Tablets s remedy (pat cures & cold in ome day. habeas | or cxcept to | thereupon | a particular offense or class of of- | int upon its face show that | CLOSES ARGUMENT ON | | i It does not || cuting witness. least, dereliction of duty. - then be forgotten altogether. law upon the head of the Judge and say stop. a forum that I did not seek. * * x CLAIMS OF GOVERNOR FOR WRIT TO PREVENT HEARI : | JUDGE FRITZ DEMOLISHED BY SKILLED ORATORY OF ATTORNEY prevent the jurisdietion. * * i * great deal of investigation grew out of the fact that it was contended that a man who was then representing California in the United States Senate and another who was repre- ng this State in the House of Representa- tives had been libeled. As the law then was, and was construed and decided, a libel was committed in every precinct where the paper was circulated. That was considered to be a publication. That matter was taken up by the constitutional convention, and as counsei has well said, those representing the power and the liberty of the press desired to curtail that which had been the law theretofore—not to ¢ pand it and extend It, because it was heid be- fore that time that you might go to the county of Siskiyou if the paper be published there; you might go to the county of San Diego if the paper be published there; you might there arrest for criminal libel the pub- lisher of the paper and take him there to nswer the charge before that court. It was | attempted to curtail that jurisdiction and a | provision was put in, as an investigaticn of | the debates of the constitutional convention will show, providing that it should only be | prosecuted’ at the principal place of business, | or where the principal place of publication of | the paper was. That drew forth the discussion part of Which counse! read to you the other day, and re- fulted in the amendment section § of article I—that “Indictments found or informations | 1aid for publications in newspapers shzll be {trled in the eounty where such newspapers | have their publication office, or in the county where the party alleged to be libeled resided | ot the time of the alleged publication, unless ]m» place of trial shall, for good cause. be changed.” ' BOARDMAN SUIT ' MUST BE TRIED | e [Quotes Law and Decisions to ! Prove - Legality of Proceedings. | Before the Police Judge of the city of San Francisco, as shown by this particular peti- | tion Tor a writ of prohibition now before your | Honor, there was by a person who was a | citizen of this State lodged before his Honor A. J. Fritz, as a committing magistrate, a complaint which alleged that the crime of | libel had been committed in the city and | | count of San Francisco by the San Francisco | | | Cajl, and that the principal place of business or principal publieation office of The Call was | in_the city and county of San Francisco. | iDid that show upon its face that the com- | mitting magistrate had jurisdiction of the | subject-matter of the offense? If it did, and | 3t under any circumstances which might ap- | ply hereafter the Police Judge, sitting as a | magistrate, could examine into the question &8 | to whether or nay that crime had been com- mitted here, then he had jurisdiction of the subject-matter. There has been a great deal sald in this case about elective jurisdiction. I undertake to say that there is no such thing as elective jurisdiction of the subject-matter. From | whom does any tribunal get its jurisdiction of sulject-matter of controversies? Can it De conferred by the parties? Or, isn’t it a part of the sovereignty which is’ conferred upon themn by the law of the land? No one can so conduct himself before a court or tribunal as to give to the court jurisdiction of the subject matter which it does not have. They mas walive jurisdiction of thg parties; they may ap- pear before a court-and submit themselves to the jurisdiction, but the jurisdiction of the | subject-matter comes from the law, not from | the act of any particular party. And if it be a fact that a committing magistrate, sitting in the city and county of San Francisco, has juris- | diction to examine and-determine whether or | bt a libel has been comimitted when the prin- cipal place of publication of that newspaper is { in this county, then Judge Fritz had jurisdic- tion of this subject-matter. It makes no par- ticular difference that some one else had com- menced an action stating that it had been | pubifshed in some other county. We will come to that a little later on and show that, if it were in any kind of a -case the notice of that must be brought to the Judge, and he must | @0 one of two things. He cannot dismiss it, nor can another court dismiss it because he didn’t have any jurisdiction, because he has. It it were a civil case it would be made by a plea in abatement. and the court then act- ing as a. court would determine as to whether or not it was for the same offense, whether or not it was the same parties, whether or not, in fact, it was such a matter that should abate the original action. So we say, casting Ge all that has been said in relation to this | matter, and looking at it with the cold clear i eve of the law, if It be a case of libel, and the general newspaper publication office is in | the city of San Francisco, then any commit- | ting magistrate sitting in the county of San | Francisco has jurisdiction to determine whether | or nay—what? Whether or not a crime has been committed; whether or not there is rea- | sonable cause to suppose the parties charged | with having committed that crime did it; and what else? Whether or not it is a case triable within their jurisdiction, that is, within the city and county of San Francisco. Counsel admits frankly that any citizen may file an information; he admits that it does not require the injured party, except—he rather withdrew that statement this morning—except it be in a case of this particular kind or char- acter. What difference is there between a case of this kind and character and the case of a man who has been robbed of a thousand dollars? What difference is there between that and a case of this kind and character? Which, to say the most. is an attempt, as counsel put it to stab_the reputation of an honored citizen of the State? Suppose it had a man who had attempted, not only to stab his rep- utation, but to stab his body, and to take his life, and he was being tried for assault with a deadly weapon or assault with attempt fo commit murder, in such a case would the prosecuting withess have the right to control the prosecution? Would the prosecuting wite ness have the right to say before whai par- ticular Justice of the Peace it should be brought? The law says nay. Common sense .lx'.hntay(‘ll‘rity ‘which i - i s required shoul rlaced behind every prosecution for m:n:el offenses says nay, that it is the law which has been broken, the officers of the law ‘are the prosecutors, and in this state the case shall be prosecuted in the name of, by and in behalf of the people of the State of Califor- PEOPLE STAND AS PROSECUTORS Gage’s Duty as Citizen Is to Assist and Not Bar the Hearing. Section 20, article 6, of the constitution sets at naught all of counsel's argument in relation to the elective jurisdiction and so forth. ““The style of all process shall be ‘the People of the State of California,’ and all prosecution shall be conducted in their name and by their authority.”” The makers of the fundamental law of the State meant what they said. And it was for the express purpose of. taking away from people the power to persecute ma- liclously, that It is put within the power of the prosecuting officers of the State. Let me state right here one of the most remarkable things, it seems to me, about this entire proceeding | There is not_an officer of the law except the prosecuting attorney’s office in the county of Los Angeles that is honest, according to this proceeding. There is not a single judge or a single person that is fit to sit as-a committing magistrate between the outraged law, the peo- ple of the State of California and these de- fendants, except one justice of the peace away L down in the southern’ edge of the State. They do not give, in their petition, nor does counsel | in his argument give to the officers of the law one single grain of honesty or one single bit of intelligence. If the facts which he has argued to your Honor be true are you to as- sume _that they will not be brought out in the c”dlrt where the prosecution is being waged' now? He says that the District Attorney of the city and county of San Francisco knows noth- | Ing about the facts. Are his lips sealed? Does- | W't it lie within his power, either orally or in writing, to lay before that prosecuting of- ficer every fact which he knows which would in | any way clear him of this charge which is made in the newspaper, and put them upon the brand of convicted law-breakers? Does he intend to show to your Honor that he who | has been endowed with power to set and deter- | mine whether or not a crime has been commit- | ted in this jurisdiction will cast aside the | evidence and decide without law or without | thyme or without reason, and for that rea- son ask your Honor to put the strong hand | 2nd arm of the law upon him and say stop? That is not the province of a writ of prohibi- tion. That is not why the power was given to this court to issue such a writ. You can- | not substitute your opinion or your judgment | for the judgment of the inferior tribunal. It is only by reason of the fact that they are go- irg outside of their jurisdiction and doing something that the law does not require Dr‘ rermit them to do. Does the law permit them to examine a question as to whether or not an offense has been committed which is triable within this jurisdiction? If yea, then we say that the court had jurisdiction to determine it, upon the face of the pleadings. A writ of prohibition is by all the law- writers called and denominated an extraor- dinary writ, and an extraordinary remedy, and one which will be called into existence only where there is an excess of jurisdiction. I do not think it was necessary, as my assoclate, Mr. Preston, read White vs. the Superior Court and Patterson vs. Conlon, and these 'other cases, to read them to your ilonor, but they all emphasize this fact which Mr. Moore says in one breath they concede and in another at- tempts to argue out of existence. They all concede and go upon the basis that it is only upon questions of jurisdiction, and prima facie jurisdiction, that the aid of this extraordinary Temedy can be invoked. If, say some of them, the jurisdiction of a court or of a tribunal and particularly this case of Crowley vs. Sac- ramento, emphasises the fact 'which we have been endeavoring to emphasize before your Honor up to this time. In that case a writ of prohibition was asked, to prevent the Sacramento City Council from proceeding to hear and determine charges of | incompetency against the Street Superinten- dent, The Supreme Court, in deciding that case—and I call your Honor's attention to it because it Is an Instructive one in this proceed- ing—says: “The pnly_questign. which we can examine is, Have they the power to gry him? If they have the power to try him then we cannot determine whether the charges are sufficient or nof It is a matter within their Jjurisdic- tion.” It winds up by saying, ‘‘Because they are given, by the charter of the city of Sacra- mento the right to try or dismiss a Street Su- rerinténdent for incompetency, they may fol- low out the method and the mode which they see fit in their examination.”” But we are not driven to that. The law has prescribed the mode in which a ~committing magistrate vroceeds to examine in relation ta whether or not a crime has been committed. There is no pretense that the forms of the law have not been complied with. Hence we £av, it being solely a question of jurisdiction, an the constitution conferring jurisdiction, under the law it Is for the officer to hear and deter- mine whether or not at least the question is triable within his county. There are a large number of those cases, but they were gone into very thoroughly by Mr. Preston in his opening and you have the list of them. I commend to your Honor's attention strongly the case of Shearer vs. the Superior Court, 96 Cal., on page 65, as a very instructive case upon these proceedings. NOT FRIGHTENED BY GAGE’S CRY Punctures Assertions Made in the Petition and Arguments. Now. we have proceeded this far. The con- stitution provides that the crime of libel may be'prosecuted in the county in which the prin- cipal place of business or principal place of publication of the newspaper is. The consti- tution has provided as to who shall be commit- ting magistrates. The Penal Code has said that when an information is lodged before a committing magistrate, charging that a crime has been committed which is triable within his county, he shall do and perform certain acts. The petition shows upon the face of it that an information has been lodged; that it is charged that the publication office of the newspaper is in the city and county of San Francisco, and then it says that by reason of certain things being attached to it the court acted upon that petition, issued its warrant, brought the de- fendants before it and was about to proceed, or had proceeded partially, with the examina- tion to determine whether or not a crime had been committed within the county, whether or not there was reasonable cause to suppose the defendants had commilted it, and whether it was triable within the county. Upon that statement of facts, 1f there was nothing else, there could be no possible concefvable question but what the courts had jurisdicticn. But counsel says it was made t» appear in that court by a certified copy of a_complaint which was filed in another court, that another pro- ceeding had been commenced in another court. I did not call counszI's attentlon to that partic- ular portion of his petition in relation to that which appeared before Judge Fritz. Of course he alleges it in this petition, but he does not @llege that it at any time appeared before Judge Fritz in that particular proceeding that the persons had ever been submitted to the Jurisdiction of the court of» Wilmington Town- ship. He says outside that Judge Fritz, as a committing magistrate, had taken their ball, but he does not say that that petition or that complaint lodged before Judge Fritz asking him to examine it sald anything about that. But. however, let that go. Under the constitution and the law Judge Fritz had jurisdiction unless it has been ousted by one of two things: First, ‘unless it was ousted by the fact that another proceeding, ad- mitted to be of the same kind or same charac- ter. was pending before another Justitce of the Peace in an adjacent county or unless he was ousted of his jurisdiction by that which they have termed collusion, Can it be said that a Superlor Court will direct its writ of prohibi- tian to an inferior court and arrest the pro- ceeding in that inferior court because it may have erroneously determined questions whiol it had the right to determine? ‘Who had the right to determine the ques- tion as to whether or not there was an exactly similar proceeding pending before 4 committinig magistrate with equal power in an adjacent county? Who had the power to do it? Whoso duty was It to do it? Was It the committing maglstrate’s duty, upon the facts which were placed before him to determine whether or not such a state of facts existed, or was it their duty to have another court do it? It depended upon a certaln state of, facts. It depended upon the question .as to whether or not these peoeple had been regularly arrested. It dee pended upon the question as to whether or not, upon the face of these proceedings in the Wil mington Township court, the court had jurls diction. It depended upon the fact as to whether or nay down there the prosecuting witness in that court resided in that county, so that he could Invoke the jurisdiction in that county under the constitution. 1f it was the duty.of Judge Fritz to deter- mine that question, and they submitted it to him, the fact that he determined it against their contention does not give them the right to a writ of prohibition. Did he have the right to pass upon it at all?” If he had, he had the right 10 pass upon it and form an erroneous conclusion. If he did not have the right fo | the nublic schools for forty years. pass upon it at all, why did they. present to’ to_him? Let us follow out the argument of my brother Mooreto its logical conclusion and see where Wwe will lapd. If his contention be correct, there never can be such a thing as res’ ad- Judicata, former jeopardy, former acquittal or former conviction. If it be a fact. that {noment a court, criminal or otherwise, assurnes o take jurizdiction of the subject-matter at a ctvil cause or a public offense, court must stand back because it has no juris- diction, then, when it comes to the trial of any cause—take this cause, for instance, and as- sume. for the sake of the argument, that there should be an information and a trial before a Jury, and a conviction or an acquittal In_tifis case. Then, according to the argument of the learned gentleman, you could not plead that. Why? The inferior court had no jurisdiction | updn which to base the information, The court which took the information and | brought the accused before it had no jurisdic- tion because, forsooth, it had no foundation. If you follow it out—and I ask your Homor to look at that carefully and clearly—if you fol- | low out that argument to its logical conclusion, there never can be such a thing as the plea of a former conviction or former acquittal. Let us take this matter up and look at it in reason, and assume, for the sake of the argu- ment—or let me first say that I brush away ajl that counsel has sald about two prosecutions for the same offense. There may be. There cannot be two convictions and two punishments for the same offense. It is the judgment of a court of competent jurisdiction,” when a de- fendant has been put upon trial in a tribunal that has jurisdiction of the subject-matter and of the person, upon a valid indictment; it don't make any difference when that indictment was found, if it be for the same particular offense. It is the judgment that counts. That is what the constitution says. Let me say to your Honor that that kind of a doctrine cannot be brushed aside by the cry of Wolf, wolf,” or of ‘Boardman, Boardman.”* That was another particular thing that I did not exactly understand about counsel's argu- ment. The research which they made to pre- sent this case was great. Tons of books came In° here under the bending backs of pentlemen who had spent sleepless nights in looking into their volumes, because some of them wen: to sleep here while Brother Moore was argulng his case. Not only did they g away back into the days of Blackstone, but iy went back to Magufty's Fourth Reader, that T don't belleve has -been in existence in and my brother Moore fished out from that the story of the shepherd boy and the wolf. It is a good story. I wouild advise him to tell it some day | When he gets a case to which it is applicable, but its applicability here I fall to see, ex- cept that they cannot get away from thess authorities. ¥ = WILL KNOCK AT PRISON DOORS Efforts of Governor Cannot Prevent a Proper Investigation. They cannot avoid a public investization of the- charges made In that newspaper article. They cannot keep an unbiased and an unpreju- diced and a convenient tribunal from knocking at the doors of San Quentin and determining wkether or not that be the fold of lambs that are as innocent as he attempts to make them, or wlether it be the lalr of the wolves that is surrounded with fraud, corruption and fei- ony. These things will not ““Wolt! Wolf!"" out, neither will they ‘‘Boardman, Boardman'' out. It is either a question as té’ whether or not they have been guilty of violations and .u- fractions of the law and whether or not. this court has the right to determine those ques- tions. When we get down to the proposition, and when counsel looks at our authorities, he says ‘'Well, I admit,” after he has read to your Honor book after book, and made stale- ment after statement, “that it s the court which first obtains and takes jurisdiction thac shall fellow it clear through to the end.’ He drew no distinctions between courts of one county and those of another, and none can be drawn. A committing magistrate who sits for ou: township is just as much of a court as anothei committing magistrate who sits for anoth township; and it he takes jurisdiction, and it the doctrine for which counsel contends be the true and correct doctrine, then he is just a much divested of jurisdiction by the matter pending in one townshin as he would be if it was pending in a great many. -Our courts have never drawn the distinction which counaul claims for them. He rather makes light of this case of ex parte Kalloch, in 568 California, and I am free to confess that if I had his side of the case I think I would, too. This is what the courts say—and test his logle, if your Honor please, by this statement, not of @ court of Massachusetts, not of a court of Arkansas, not of a court of Indiana, but by a statement of the courts of our own State, pass: ing upon this very particular question, whiz is_the one before them. This Is the uestion walek s asked: “‘But was it a material fact in the case that the second prosecution was commenced beforc the first was ended?’ Not was it commenced in_one township; not was it commenced in the other township, but was it a fact that one had been commenced while the other one was pending? The court goes on: “‘Suppose the prosecution had been by indictment, would the pendency of the indictment affect the right of the prosecution to present another for the same offense?” If we believed the doctrine which is announced here, If an indictment was filed by a grand jury, the same or any other grand jury, then we could have the prosecuting attorney the prosecuting witness coming in to your Honor and asking you to put your hand upon the grand jury and stop them from in- vestigating as to ‘whether or not an offense had been committed. Why? Because another grand jury had indicted him for the same of- fense. "I have vet to hear—it may be a fact, but they have not shown it—where, in a crim- inal case, in the preliminary stages of the pro- ceedings or at any time prior to the time of the Judgment, that cne is a bar or an abatement of the other. “‘This question is answered in the negative by a multitude of authorities, a few of which are Dutton vs. the State, 5 Ind., page 534; Commonwealth vs. Murphy, 11 ' Cush., page 472; Miazza vs. the State, 36th Miss., page 616 in United States vs. Herbert, 5 Cranch. C. C. Rep., page 87, and Wharton's Criminal Plead- ings ‘and Practice, page 452. These authorities won’t down by the cry of “‘Boardman. Boardman,” That authority can- not be wiped out of existence by the authority of Maguffy’'s Fourth Reader, where the boy called out ‘‘Wolf, wolf, wolf.”’ The same case arM the same statement of facts existed in the cese of the People vs. Johnson. ““The defendant was arrested on a warrant issued by a Justice of the Peace of a certain township on & complaint filed before him. Thereafter and while this proceeding was pend- ing he was again arrested on a warrant issued by a Justice of the Peace of another township, and was by him committed. On this commit ment the information was fled under which he was convicted. Held that thé proceedings be- fore the first magistrate did not affect the validity of the information nor deprive the Superior Court of jurisdiction. That, we think, Wipes away that proposition, First, the court is given jurisdiction to try a case under the constitution; second, under sec- tion 811, it is given the jurisdiction to try the question as to whether or mot it is triabla in the county. They proceeded according to the forms of Jaw in-the ordinary method prescribed by law to make that investigation, and it is held that while the law gives it jurjsdiction, the jurisdiction has passed away from it be- cause it {s made to appear to it that anotker court has assumed jurisdiction. Flirst; they bave the right to try whether the other court has jurisdiction; second, if the facts be. true, it does not deprive it of jurisdiction, because the Judgment of one court in a proceeding of this kind is not a bar. Counsel, when your Honor asked him that question, sald, after great besitation, he thought it was. But all the au- thorities say nay. every other |- GAGES WRIT NG BEFORE T is only for the purpose of throwing dust in this case and avoiding an examination before a tribunal and bring- H ing out these matters to the sunlight-of heaven that they have attempted to bring Boardman into this case. It ! does not make any difference who sets the wheel in motion, you don’t inquire what was the motive of the prose- | I will go further and state that he is a citizen of the State of California who does not believe in the methods pursued by the prosecuting witness in this ease, who does not believe it is the proper way to get an investigation to go five hundred miles away from the seat of the alleged crimes; that he does not believe that San Pedro is the proper place to investigate and determine whether or not the Warden of San Quentin prison has been guilty of, to say the x X K He thought, forsooth, that the case down there might slumber and smolder until its ashes would grow cold and * * * We say that in the annals of the law there cannot be a ease found where the prosecuting witness was heard to go into eourt and ask that a writ of prohibition be given him to put the arm of the * * * It is not at the behest of any man to. say to the people of California, “You stop the investigation as to whether a crime has been committed because.you are Thvestigating in —Extracts trom speech of Attorney J. C. Campbell. - MANY DECISIONS ARE 'PRESENTED Rulings of Supreme Courts Cover Case Before Judge Sloss I call your Honor's attention to the case of ex parte Fenton, 77 Cal., page 183, where the court says that the defendant may be arrested as many times as you can get a Justice of the Peace to Issue the warrant: “*A person cannot be said to be once in jeop- ardy until he is put upon trial before a court of competent jurisdiction upon indictment or information which is sufficient in form and sub- stance to sustain a conviction and a jury has been charged with his deliverance, “The writ is discharged and the defendant remanded to the custody of the Sherlff.”” ‘We say, if your Honor please, that the fact that the Justice of the Peace down there first assumed to act in no way interferes with this. Counsel called your Honor's attention to cer- tain sections of the Penal Code. section 94 of the Penal Code, and applying the rule of construction that the expression of one thing is the exclusion of others to this section, Wwe have an authority directly in point. Sec- tion 794 provides, ‘‘When an offense is within the jurisdiction of two or more countles, & con- viction or acquittal thereof in one county is a bar to a prosecution or indictment therefor in another.” A conviction or acquittal, not a prosecution, not an arrest before a Justice of the Peace to determine, And while we are upon that proposition just ask this question. There are other cases in Which the jurisdiction is in various counties. There is & case where a person commits larceny in one county and carries the goods into the other. And if we apply the doctrine for which counsel so strenuously contends in this case to those cases, that, it is the party injured who has the elective jurisdiction, that this question | of electing the jurisdiction—and I say that it is the people of the State of California who do the prosecuting, that have the right to elect the jurisdiction and they have the right to elect two jurisdictions. If there be any doubt as to where a case is triable they have the right to elect either one. Suppose a man steals a thousand dollars in the city of San Franecisco and flees to the county of San Diego, and he is arrested there red-handed with the money by the officers of the law, and the officers of the law desire to prosecute him in that county, but the man from whom the money is stolen does not want 10 g0 to San Dizgo—before they have got their evidence complete and before they flled their complaint he comes In and files a complaint 2nd says to the officers of the law, ‘“You must come to San Francisco; you must come to the place of my abode with your thief, your money and your evidence. Nc matter what eviuence you "have down there, I elect to prosecute this man in the city of San Francisco, and not in the city of San Diego.” Is trere any law which is the foundation for any such argu- ment as that? Is there any reason why that ought to be done? But, suppese he files his complaint here in San Francisco and the offi- cers of the law—let them be supercillious ssses if they may, or be whatever they may— and suppose they, thinking it is for the best interests of justice, file a complaint down there, and they both proceed; he is tried down there and he is convicted:; he is indicted up here. Isn't the conviction to be pleaded up here? Is not the court before whom the man is tried to determine whether or not it is a former acquittal or a former conviction? Has not this court the power to determdne it? Or can they bring a certified copy of that record and lay it down on your Honor's desk if you were trying a criminal cause and say, ‘‘Stop; don’t swear a witness; you have no authority to impanel a jury; this man has been con- victed?” 'Would not your answer to thém be: ‘“That all may be, but that is a question of fact, to be submitted either to me or to the jury, under the instructions of the court, as to whether or not this is a valid judgment’’? Would it divest you of jurisdiction to deter- mine the question as to whether or not there had been a former acquittal? It seems to me that the asking of the question is the answer to it in every particular. Let us look again at the position which coun- scl takes in relation to this elective jurisdic- tion. In connection with the admission which he made this morning and in connection with the question which the prosecuting witness asked me, counsel says that that is the regu- iar and ordinary way of conducting business for the purpose of preventing a conflict of jurisdiction. And then he admits that there may be the same case prosecuted before two various Justices In the same county, because, he says, they have jurisdiction. With the hupgry constables in township A and township B, and the amount which the magistrate gets the conflict of jurisdiction would be equally as bad in one as in the other. And why is it then that they can have juris- diction and the Justices or ~the committing magistrate of other counties cannot, because in some places there can be but one jurisdiction, and insome crimes there can be but one juris- diction laid. If a man shoots at another man in San Francisco and runs off to some other county he cannot be prosecuted in that county. He may be arrested and may even be brought before a Justice of the Peace and have it de- termined whether or not be shall be sent down here to be trled; but when the constitution says that the accused is triable in this county, don’t the committing magistrates of this county have just identically the same juris- diction that the magistrates in a county would havs wherein the case is presented? ~What would be the difference if a Justice of the Peace in township A" has jurisdiction and the Justice of the Peace In township B has jurls- diction—forgetting now all that the counsel said about the first court which takes jurisdiction holding it through to the end, and taking the admission that it s because ‘they are in the same county and that the road leads to the same Superfor Court, that they would have that right; there is no authority and no reason to sustain that proposition. TAKES UP CLAIM OF COLLUSION Says Gage Makes Charges for Purpose of Evading an Inquiry. Hurrying along now as rapidly as I can, I come to the next point, collusion. There is such a thing as collusive jurisdiction, but there is not such a thing as collusive jurisdiction where they admit that the court has jurisdiction. I want to be understood this way: If a court s given by law jurisdiction of the subject-ma: fer, and obtains by its jurisdiction of the de- fendant, then it does not make any difference how this jurisdiction was invoked. It does not make any difference whether it was an enemy of the Governor or a friend of the Governor; it does not make any difference whether it was an enemy of the defendants or a frlend of theirs. It does not matter what was the motive of the party who Invoked the juris- diction, and the court will not refuse to do its duty and examine and determine whether or not a crime has been committed and the de- fendant has committed it. It is only for thel purpose of throwing dust in this case and avoiding an examination before a tribunal and bringing out these matters to the sunlight of heaven that they have attempted to bring Boardman, Boardman, Boardman Into this case, It doesn’t make any difference who sets the wheel in motion. You don’t inquire what was the motive of the prosecuting witness. doesn't _prevent the jurisdiction, as gested by my assoclate, whatever the motive may be. I will admit, it you please, anything in that regard that you want. I will admit for | of thesalleged crime; that he does not believe On this sub- | Ject I desire to call your Honor's attention to | is sug- | Dan Kevane Fails to Be Present at Proceedings Decisions Quoted to Prove Point of Jurisdiction — 5 the purposes of this case that Mr. Boardman is an enemy of the Governor; I will admit that he is a1 enemy of the defendants for the pur- poses of this case; I will admit that he is a friend of the Governor for the purposes of this case; I will admit that he is a friend of the defendants for the purposes of this case—and it doesn’t cut any figure on the question of juris- diction. I will go further and T will state that prob- ably he. s a citizen of the State of California who does not believe in the methods pursued by the prosecuting witness in this ‘case, who does not believe it is the proper way to get an inves- tigation to go five hundred miles from the seat that San Pedro is the proper place to investi- gate and determine whether or not the Warden of San Quentin Prison has been guilty of, to say the least, dereliction in his duty. I will go that far and say that he had no other object in it whatever than to bring be- fore the public the question as to whether or nay officers who have been put in charge of criminals, and who are supposed to be there to guide them in such & way that when they come out they will be honest and respectable citi- zens; that he thought, forsooth, that the case down there might slumber and smolder until its ashes would grow cold and then be forgot- ten altogether. And that is what eould hap- pen; I do not say it would happen, but that is Wwhat could happen if the counsel's proposition 1s correct. A complaint can be filed, a warrant issued, a defendant brought before the court, and go on, and on, and on, continuance after continuance —because, according to the case of the People vs. Budd, a defendant does not have to be present at these particular proceedings and any forfeiting of his bond is simply a matter of wasting the ink and the time of the party that does | So we say, admitting everythnig to be true— and the counsel put into that petition every- thing he could think of—except, and I may be pardoned as well as counsel for going outside of the record to say that when he and his asso- ciate could not get their own way and could not create a side issue and could not divert the attention of the court and the public from the main issue, as to whether or nay Mr. Aguirre and others had been guilty of frauds and felo- nies In San Quentin, by holding up Mr. Board- man and attempting to show that Boardman didn’t know them—when they could not do that, and the court asked those gentlemen if they would not assist him in ascertaining Whether or not he had jurisdiction. There is another case or two to which I de- sire to call your Honor's attention. What right, what authcrity has the petitioner here to invoke the writ in this particular case? The petition alleges that he Is a party in interest, that he is a party beneficially Interested. The only fact which he alleges, outside of the fact that the libel is alleged to have been TPE- trated upon him, is that he is afraild he Wwill be subpenaed as a witness, and that it has been announced by the defendant Lhat ome hundred witnesses will be examined, and hence that he will be kept away from his home and from kis business. Any man in the State of Californta could come betore your Honor and get a writ of prohibition case or. that showing. I am speaking mow o the showing on the ground of being subpeaaes or probably being subpenaed as a witness and kept away or» his home and nis Susiness. He does not allege that he has been st bpenas He suvs that he will be in all probability ¢r that ke belleves he will be, and that that wil keep him away from his home and his busi- ness. It nceds no argument to show that that is inzufiicient. It needs mo ‘argument, or very little arzument, to show that a prosecuting witress nas not such an Interest that he can come into a court and invoke the aid of the ccurt ir getting a writ of prohibition, 1 call the attention of your Honor and coun- sel to the Encyclopaedia of Pleading und Practice, volume 4, page 162, under the head of the test as to the right of the individual to the writ. It is under the title of certiorari, but I apprehend that there can be no ques- tion that the party who desires certiorarl or mandamus or prohibition must shew taat he is_beaeficially interested. In the case of Conlon vs. Orr, Mr. Conion was a citizen of the State of California. He represented, in his petition, that he was the pubtither of a newspaper and that thece was 2 pukllc record, to-wit, the record of the board of directors of an insane asylum, whica con- tained certain things which he, as a citizen, desired to inspect. The board refused to nilew | him to do so, and he came to the court fcr a wnt of mandamus to compel them to I him inspect the record. The Supreme Court there said, although he may have had a rizht to inspect ‘the public record as a citizen, he had not such a beneficial Interest as would entitle | him to maintain the writ of mandamus. CANNOT BLOCK LAW’S PROGRESS In Criminal Cases No Man Can Defy Mandate of the People. _ A recent case in which the Supreme Court has construed the words ‘‘a party in interest, is the case of Fitch vs. Board of Supervisors, which I called your Honor's attention to and cited it to counsel. There was a case much stronger than this. Mr. Fitch, the petitioner, who pétitioned the Superior Court to turn the Board of Supervisors out of office, stated that in’ this particular | PAINE'S CELERY COMPOUND. Could Not Lie Down, Sit Up or Stand, Without Experiencing the Most Excru- ciating Pain. Paine’s Gelery GCompound After the Failures of Physicians, Special Medicines and Electric Battery, Banishes Pain and Tortures and Restores Health. In the ranks of sick, tortured and dis- eased sufferers many men and women have become hopeless because of the fail- ures of physicians and their medicines. We would have all such dejected and despairing mertals take comfort this very day. We would impress upon them the blessed truth that Paine's Celery Com- pound is abundantly able to save and cure even at the eleventh hour. FPaina's Celery Compound accomplishes its life- saving work for the old and young when all other medical treatment fails. A mul- titude of people have furnished strong and incontrovertible testimony in support of the statement that “Paine’'s Celery Compound makes sick people well.” Mr. John W. Boyd of Mishawaka, Ind., re- fers to his own case as follows: “Last winter I was taken down with a very severe attack of nervous and mus- cular rheumatism, so bad that I could not lie down, sit up or stand, without the most excruciating pain. I was ail the time under the care of two of the best physicians of the place, but I did not improve. 1 took different rheumatic cures and used an electric battery a half hour each day for ten days without any relief. Finally I conciuded to try Paine’s Celery Compound, and to my surprise aft- er using one half of a bottle I was able to get out, dnd before I used the whole bottle I went to work and have worked every day since. I have gained 20 pounds | in weight and am feeling first rate.” — libeled a citizen of the State of Californis, high in authority though he may be. The court is proceeding according to the ordinary meth- cds of law to examine this question to deter- mine whether or not a crime has been com- mitted within its jurisdiction and whether there is reasonable cause to suppose that the de- fendants committed it, and whether it is tri- abie in this jurisdiction: The prosecuting wit- ness not asking the people of the State of Cali- fornia, who are alone to do nu‘- rmuecutd mn-!; the prosecuting witness steps in and says {Te court, "My reputation is at stake”—and. it makes no difference except in degree and senti- ment as to whether it Is his reputation that has been injured or whether it is his purse or his property that has been stolen. ‘“My property has been stolen. I see fit to prosecute this in another 1, exercising what counsel says is my elective jurisdiction, have elected to | prosecute this some place eise. I ask you not beckuse I am a party, not because I cannot | set a fair trial, not because this is not the nearest and most accessible court that has jurisdiction, not because the Judge is not hom- st, not because I don't want this matter | Lrought to the light of the sun, but simply be- cause I have selected another forum, and this man, this citizen, exercised his right of eiti- | aenship and went before a committing magis- trate without my knowledge and without my consent—he had the audacity to suggest to a magistrate five hundred miles away from whers I desired the case prosecuted, that a crime had been committed which was triable within this | jurisdiction without consulting me. Hence I am interested to such a degree that I ask your Honor to determine whether or not this court has_jurisdiction.” Wé say that in the anmals of the faw there cannot be a case found where a prosecuting witress was heard to go into court and ask the court to give—to whom? To him, the extraordinary remedy of the writ of prohibi- tion. or to the people of the State of California the ‘writ of prohibition: at his instance and request and bequest to put the arm of the law upen the head of that Judge and say stop. The constitution says these prosecutions shall be in the name of the people, and the people have not asked your Honor to clog the wheels of justice. to give it to a prosecuting witness— or Lot a prosecuting witness even, but to give 1t to a person who is alleged to have been the injured party ~These proceedings in criminal libel iwere not given so that @ person could vent his malice or his spleen upon the news- paper man. They were given to protect the community; they were given to protect the peace; they were given because if there was no criminal lability in the matter, murde: might follow, and the power of the people of the State was put behind it, and behind thc power and front of the people of the State the individual sinks into insignificance and the outraged and the broken law stands out. It is not at the behest of any man or any set of men of any kind or character or race or previous condition of servitude to say to the peaple of the State of California ““You stop the investigation as to whether or not a crime has been committed.” Why? Because you are investigating it In a forum that I did not seek. because a citizen has come into the courts of justice and invoked their ald for a breach and violation of the law without con- sulting me. When that can be dome then will cur criminal proceeding become a laughing stock of the world. One thing more, suppose that this Bas gome on, suppose that he has the right, 'as my brother Moore suggests that he has, to control these proceedings. This is but the first step in the prosecution of this case. If they are not satisfled, if the defendants be bound over and he was a citizen of the city and count Francisco, that he was a taxpayer, that hoe‘usj:g | water and paid water rates, and that he was al party in interest and had the right to have the | rates fixed according to law. The Supreme | Court said that he was not, that he had no | right to maintain the action, that he was mog | a party in integest, that he had not such a | right as to Invoke the writ, that it was quasi- | criminal proceeding to deprive a person of his | office, and that it should have been prosecuted in_the name of the people. Let us look at this case. brought by the nia against the An action is le of the State of Catims lefendants, charging that they they think the court has not jurisdl they bave their rights in the court above. s s the foundation of an information, and if they have the right to ask you to Zive & Writ of pro- hibition they would have the right to go int the Superior Court to which that information was returned and ask that it be dismissed, be- cause the court, assuming to take jurisdiction there, had no Jurisdiction because the commit~ | ting ‘magistrate who bound him over had ne jurisdiction to so bind him over to answer. One stands by the side. of the other. If they have the right to come into this court and ask Continued on Page Nine. i e | e TERRY IN SHAPE. Give me a man broken down from any cause whxd_l has sapped his vitality months and I will make him as vigorous i age. I will not promise to make a by nature to be strong and sturdy. is, but the man who has been strong as good as he ever was. If you are not right call on me to men who are growing old too fast address and I will send you my story in Dr. M. C. Mclau The Little Wonder Writes About Kis Condition and Says He Is Fit to Tackle a (iant, He says: “For the past six months my back has troubled me more or less, caused, no doubt, by the exces- sive training that I have had occa- sion to do. T tried various remedies for the trouble and received no bene- fit. My attention was attracted to a testimonial of Tommy Ryan, who said Dr. McLaughlin's Electric Belt had eured him, and our business being of the same nature I thought that any- thing that would cure Tommy ought to I took the first opportunity & to Tommy about the elt, and after hearing from his own Bl T was camvinenic an o mvinced, and immediate- ly got ome, and had only worn it one were marvel- indebted to you TERRY HcGOVlRl%- dissipatic_m, hard work or worry, from . Let him follow my advice for three N _every respect as any man of his Hercules of a man who was never intended Even that man I can make better than he and has lost his strength I can make and I will show you how I restore youth . 1f you can't call send this ad and your sealed el_lvelope, free. ghlin, ** s San Francisce. ©Office hours, 8 a. m. to 8:30 p. m.; Sundays, 10 to L