The San Francisco Call. Newspaper, August 2, 1902, Page 3

THE SAN FRANCISCO CALL, SATURDAY, AUGUST 2, 1902. GAGE'S ATTORNEY, WITH ILL-CONCEALED CHAGRIN, HARANGUES COURT ON THE MOTIVE —_— Wastes Time Indulging in Talk. Makes Attack on District E Attorney. = * Continued From Page Two. atorial character if he can. e him case He is challenged, we defy him to come here and to prosecute it. He weeks ag to prepare and to try, w after defeat and n the Superior the Supreme Court, he ome is court and calls this se ‘amous. Infamous for m? Infamous for involved, touching as it honor of the Chief State? Again, let him his hands, put on questions = here. primaries that he been held. Don't de- one until these dele- nted and who eat or not— ted and s his ce to vin- 2 every door thrown open, and e sun upon every avenue, and a rove to the pe of the f your Honor please, jurisdiction conferred by collusion, but by vir- law, and that there is no harm being ¥ person; there is no intention to im- yone by cessary prosecution in The question this time is Whether proceed and take evi- nether or not this ac- ely. I want to However, after once before the court no col as once been com- whether the action u he questi be taken to show usively instituted. QUESTIONS OF LAW INTEREST, was ¢ NOT POLITICS| R. CAMPBELL—T have nothing to say arks counsel to the olitical questions 1 effect on the action of ante in this case. It interest in it, M does not n presented to your Honor on of jaw, and it is wWhether s not prosecution can put the wheels of there is such a thing That © occurs, al a fact from would deprive the n. information r & mis- issue in who swore mine and ooth, because within then your nor, as te, has juris- e whether or nay our juris- and county of inatior as it were, were existing for the sa a court was r either of them, conviction or ac: Now, it t a principal place paper, or the principal newspaper—to use t not cisco, deprive I apprehend that proceed and triable within ct s reasonable -ground to that the person who is charged wit MOTIVES CUT NO FIGURE. exe was stated f the motive of the question secutor cut no figure in it. And wh Y see from your experience in these pa matters, and any man who has sttain he major can see, that it ssue in every particular cer & witness can come be- fore person who is alleged to have bee . e before your Honor and . don't w se prosecuted here. fon?’ ‘“Why, the man w ation against the de- fendar of mine, and he will properly prosecuted nark in with t Judge Sloss’ t—the hat no one is « to be_in the Dis- that they matters, to be done. as I under- 1l be no objec- e, 1f the District it of the facts which e—to assist the Dis- neither the Governor, e been libeled, nor Mr. acts are under investi- r dumb. What is to nding or the sting officer - his goods_ stolen fficer and giving to the crime? I e, Lecause it raises a It eavoring to f Mr. Boardman in and not into the fact der the law the court matter of tae nuend th nest el it claim is not k Honor defendants. THEORIZES AS TO MOTIVE OF PROSECUTOR he your Honor please, Judge ever said—unless it can be found the written decision rendered by #ny werd upon the subject of the being proper to be considered. He never said anything on the argument or on the bearing upon that subject. And unless counsel c&n show it in the written opinion as filed, he motive not He has had | me; now sion | isn’t for | and | At- | + 4 =87 OF COMPLAINING WITNESS BOA | | ! — e s W) sl 2z il ) p. j SHOULD ACCEPT | fendants in this case. case and prosecute it. l - AND MEET ISSUES IN COURT | | 0 far from it being an “infamous prosecution S come the opportunity that is given and fairly and squareiy meet the issues and charges against his honor and integrity which have been made by He should arms and he should accept the inv defendants to come into this Court of Justice and present his case and vindicate his gubernatorial character if he lenged and we dare him, we defy. hi He had that invitation has had every opportunity to prepare and try argument of Attorney E. F. Preston.) CHALLENGE he should wel- him to come into Court the de- welcome it with outstretched itation and the challenge of the can. He is chal- 1, to come here and meet this weeks ago and he it—(Extract from never said it at all. My judgment is that he never said anything upon the subject, much | less saylng what counsel says he did. This | | question is not now an open question; it is the | law of this case, according to the decision of the Supreme Court. We have before the Su- | preme Court the sa petition that we had | before Judge Sloss. That petition was served | upon your Honor, and you know what it is. it charged in brief thet this s a fictitious and | bogus prosecution. Mr. Boardman was a stranger to him—which he is—and I join, I | think. what will be the hope that will be entertained by the Governor that they may so remain—an entire stranger, friendly to the defendants. Th things are set up in_the petition; all these matters are set up. Now, let us see what becomes of this double-bar- time, as to it making no difference as to what motive of the prosecutor was, and it being lly a convenience and handy way to dispose of the prosecution by taking it out of the court | where it belonged originally and carrying it | along in friendly hands. Their contention here that in such circumstances the gentlemen are candid enough to admit it. They must ad- | mit it for the purpose of the argument—the | | reled argument, although ejaculated one at a | | contention being that assuming the truth ef all | the matters which I have charged—and od | knows they are bad enough to make & man | blush for his order, assuming the truth of it all—and that it is & proper thing in some sense ~that it is not even sharp practice—it is | thing that under the broad-gaugedness of the | constitution and without the clogging of the | wheels of justice can be carried on at the be- | hest of anybody. that it is proper that a de- | fendant who has been charged in a Jurisdiction, | if he don’t want to go there, shall get his friend | to have him arrested—arrested on the same | charge 1n a jurisaiction that is convenient to him, and he sball have his friend to prosecute | these thinzs it is claimed are proper. It is claimed that Judge Sloss has in effect de- clded that it is proper by saying that the mo- tive cannot be inquired into; which I den | But such contention, your Honor, is a pure fal- | lacy, and it is absolutely negative by the de- cision of the Supreme Court on the application r the writ of prohibition. I point your Honor again—hark you, all these matters were sot out in the petition before the Supreme Court, in the petition for a writ of prohibition. MOORE MAKES A CHARGE. What did they say about It—did they say that these things make no kind of difference? If Spreckels and Leake, by reason of the power of the press and the power of the wad, inherited or ~otherwise, can produce their friend Boardman to make a complaint, that is all right? No. 1 charge of these identical facts concerning this collusive jurisdiction, the Supreme Court said that it was up,to your Honor and the prosecuting officer. If the Supreme Court had agreed with my Brother Campbell and my Brother Preston when they scanned that petition, they would have said, ““Why, that is commendable practice.” Are we losing sight of the principles, which, under the traditions of the profession—looking back | by | District Attorns X3 to a time when men swore with uplifted hands that they would have due regard to courts of justice, and when it would have been regarded &5 a heinous crime to load and clog the jurls- diction of the court with a bogus case brought a pure faker? But under our liberalized stem it is all right? They would have said, my brotker thinks Judge Sloss sald, that the motive of a prosecutor cannot be inquired Did they say that? No. They said in I am standing before your Honor now ect position and it is the law of the e as to that subject matter—the language was: Whether the proceeding before the Police Judge is collusive ie a question primarily to be determined by the prosecuting officers and by the magistrate with whom the complaint is lodged. Now, that means, and can bnly mean —by paraphrasing it can only mean that the matter there charged, if correct, would oust a court of jurisdiction. I think Judge Sloss i—well, I won't say what he said because your Honor can read his decision—but this isnguage means that jurisdiction obtained in the way we charged there and charge. here would have been obtained in such a manner ag to avoid the jurizdiction, but that it was our duty to present it to the prosecuting attorney and your. Honor; and we presented it to the 7 and’we are presenting it to your Honor. Mr. Campbell—Does that say v place Brother Moore, that If 1t be sor Loy o “or friendly motives or out of enmity n person files a complaint for a criminal cause, the court must throw that out and not examine {t? Mr. Moore—It means exactly what it says: That the question as to collusion presented in a case llke that is to be presented to the Judge, if it would be nothing, if it is a matter presumably under the law, the Supreme Court would not sav, that it is preliminarily, te presented to the District Attorney. They would say that is proper; that ic proper practice, I hope I inake myself understood. There oan be no question about that. MOORE WITHHOLDS ANSWER. Mr. Campbell—And in your offer yor % stop to show that the princival piace ot tants ness of The Call Is not within the ity and county of San Francisco, do you? Mr. Moore—Well, 1 Will answer that - tion if you gentlemen will answer. mine. Mr. Campbell—I will answer anything 18 _proper. e oAt Mr. Moore—I certainly don’t propose t. that the publication office of Thepl.‘lllnl:h:;: here. 1 will ask Colonel Preston the question ‘;-u“ is not.a fact that the first he heard of this prosecution is when he heard it Boardman? £ Mr. Preston—No, Mr. Moore—Who told you? Mr. Preston—No one. I refd it I mn_the morning. {34 1o Bhupaper Mr. Moore—What paper? Mr. Preston—I réad it in The Call, X winl say. Mr. Moore—I saw it in The Call, too. Mr. Preston—I wish to say this: I never sa) Mr. Boardman, or had any conversation with | v/’ ! kS - B JUDGE, ATTORNEY FOR DE- FENSE AND WITNESS IN LI- BEL CASE. + - = Mr. Boardman in any form, shape or mgnner before the institution of this prosecutiod, nor have I had any with him since in reference to it. The first knowledge I had the warrant had been issued and the complaint filled was when I read it in the paper. Mr. Moore—You had been told that it was golng to be done? Mr. Preston—No, sir, absolutely no. Board- man might have been in China or India for all I knew. Mr. Moore—I wish he had been. Mr. Preston—I guess you do from ‘the way you are acting. Mr. Moore—I could wish him even further off, Mr. Boardman—It is mutual. Mr. Moore—I certainly have hopes to have a. full assurance of it. Mr. Preston—I am glad to be able to furnish you that information. The court—Proceed, Mr. Preston. Mr. Moore—I will dispose of that question in very short order. I want to make my language perfectly clear and comprehensive in closing that branch of the case, wherein I say that the decision of the Supreme Court upon that sub- ject is the law of the case: to the conclusion that this kind of collusion would have avoided Jurisdiction. The court—That is not the yuestion. this action was Instigated by Mr. Boardman at the request of Mr. Spreckels and Mr. Leake— would that oust this court of jurisdiction? That is the question. question as to whether that matter should be inquired ino at this stage of the proceeding? Mr.. Moore—Unquestionably this court of jurisdiction. authorities on that point. question of jurisdiction has already been deter- g0 into it any further. QUESTION OF JURISDICTION. Mr. Moore—I understand that. Is not the law that where a court would have had juris- diction in a proper case—that s, where a court has jurisdiction of a subject matter, of a gen- eral subject matter, say of a libel, and would acquire jurisdiction of the persons of defend- ants by the service of a warrant—I undertake to say that it s not the law that because that is so, that in the case of a charged libel the court' can acquire jurisdiction where the de- fendant and the prosecuting witness collude together for the purpose of procuring an ex- amination before & court or magistrate, which in a general senise has jurlsdiction of such sub- fect matters, and in a general sense can ac- — Suppose And then there is a further it would oust The court—I will listen to any argument or Of course, the other mined by Judge Sloss, and it is unnecessary to o tion or not, been conferred by collusiom, but Attorney E. —— F. Preston.) JURISDICTION HAS NOT BEEN CONFERRED BY COLLUSION 'W is the time, now is his opportunity. wvindicate himself, with every door thrown open and the sun- light let in upon every avenue and a chance given to prove to the people of the State whether this is an infamous prosecu- I submit, if your Honor please, there is no harm being done to any person, there is no intention to impose on any one by unnecessary prosecution in this e libel has been committed and the principal office of the paper is in this city and county. then by virtue of the law of the State of Cal- ifornia jurisdiction vests in this court.—(Extract from argument of Now is his chance to jurisdiction has not by virtue of the law, and that it a quire ‘jurisdiction of the persons by the ser- vice of a warrant. Now the contention on the other side is that because your Honor has ju- | risdiction to examine cages of libel where juris- | diction of the persons is acquired by the ser- vice of the warrant, therefore it follows that no-matter how collusive or fraudilent it was in thé inceptive steps, the jurisdiction acquired by this collusion would not affect the power of the court nor the duty of the court to pro- ceed with the examination. I say that is a | fallacy, and I say that is demonstrated to be & fallacy by the decision of the Supreme Court upon our application for the writ of habeas corpus, because the Supreme Court notes on the face of the proceeding that this court | would have jurisdiction to examine cases of | libel, and that this court can acquire jurisdic- tion 'to examine into the matter of the charge of libel by the service of a warrant of arrest upon you. That Is the law of the land. They knew that. But when we made the charge that, notwithstanding your Honor had general Jurisdiction of such cases, and could acquire Jurisdiction by the service of a warrant, the Supreme Court upon the ldentical charge of collusively obtained jurisdiction on_that kind of subject matter, made as we made it there and make it here, instead of saying why the committing magistrate of the court in San | Francisco has general jurisdiction of libel, and acquired jurisdiction by the service of a way- rant, therefore you can not inquire. Instead of saying that which they would have been bound to say If this contention here is correct— which would have been at once a complete and ready answer—they said it was prelimina- rily a matter for your Honor. I would like to read your Honor some authorities on that sub- Ject—some general authorities. Mr. Campbell—They ought to have been read in_the opening. Mr. Moore—Yod can reply to it. Mr. Preston—Were the same authorities pre- sented to Judge Sloss? Mr. Moore—Yes, the same authoritles upon which_Judge Sloss said that was a_matter for your Honor to determine. Judge Sloss never sald a fraud would not vitiate. On the con- trary, he determined that it would. These are only general authorities on these subjects. In my judgment, they are elementary. MOORE GROWS WEARISOME. Your Honor will find set forth by Wells on Jurisdiction, pages 81-2—it being, by the way, a California author, afterward a Justice of the Supreme Court of this State. It the defendants and the prosecutor. col- luded there was in fact no jurisdiction. The court does not in criminal matters any more than In civil take jurisdiction of any fictitious cause. If, by means of any fictititous co-de- tendant, one is drawn into the jurisdiction by process, the jurisdiction cannot be sustained. And I undertake to say that a case ls floti- tlous If the plaintiff and the defendant con- spire to bring it before the court, even though it could bave been a real case, runs back to the institution of courts that they won't take a moot guestion, though the question may ba real between the parties, They won't allow — people to harass the jurisdiction to the injury of the public welfare, Mr. Preston—Can a real question be a moot question? Mr. Moore—Yes, it could. It can easily and readily be a moot question. Any question is a moot question where the parties who present it to the court do not desire a decision upon that matter upon proper or reasonable grounds, but desire a decision upon it by reason of the pri- vate effect that it may have as between them either jointly or severally and some outside or third party If it be that this prosecution was instituted for the purpose of ousting the court in Wilmington, or preventing the court in Wil- mington from trying this cause, It was a moot question pure and simple; it was just simply a brag, It was a political brag, that is what it was; and I do say that a real question can be a moot question, and that no court will take jurisdiction, although it might have real juris- diction upon a real contest between the same parties upon the same matter, and although it could be, and In fact was, a real question, if the parties present it for fraudulent reasons and not for the institution of a cause which shall result in public justice—but, using that favorite simile of my’ leasned brother, simply to clog the wheels of justice—no court would entertain it. Why, it would be a remarkable thing if they could. And I pause to say to your Honor that there has been no claim since he inception of courts which they have more flval‘r;;lsly guurdk;:l tjhln the prevention of im- position upon the jurisdiction b; collusion. o tie B Moore then read a number of I - cisions and proceeded to accuse telf:l[;llg- trict Attorney’s office of not intending to prosecute the case and that it knew noth. ing of the evidence and would rely solely upon Attorney Boardman, who filed the information, to prosecute for the people. Mr. Whiting arose and said: I intend to conduct it if my duty lles in that direction. I propose to do my duty in the case. I want to say right here, If the court please, Mr. Moore seems to think that the District Attorney's office is not ready to do its duty. I want to say that the District Attorney’s office is ready to do its duty in this case, as in all cases at all times. WHITING TELLS OF POSITION IN CASE ON TRIAL OORE then asked the District At- M torney’s office to join him in re- questing the court to hear evi- dence on the question of collusion and assured Assistant District Attorney Rg_'/l_qAN Argumentson Collusion Heard. Main Hearing Is Set for Monday. ‘Whiting that he had not intended to make any charges against his integrity. Mr. Whiting—I did not intend to take your remarks in that way. I simply wanted it understood that I was appearing here the same as I have appeared in any other case. If the court please, this case is not emtirely a new question in this court. Your Honor will re- member we had a question in a case not long ago where the charge of collusion was made and I took the position at that time that it would not be proper for the court to go into a collateral examination of that question. It would be trying some of the main facts of the case in a collateral proceeding. Now, it strikes me that the same question arises here. I have the same vie of the matter, that it would be improper at this time, when a pro- ceeding Is instituted by the filing of a com- plaint, and the court apparently acquires jurisdiction—and I suppose there can be no question that the court has jurisdiction of the subject matter, in view of the fact that the other courts have decided that the venue lies In this county. It seems to me at this time that after a proceeding has been instituted by the filing of a complaint, as the law provides, it would be a sort of anomaly to proceed with it collaterally to find out as to whether or not the court had acquired jurisdiction, and possibly in that investigation try some of the main facts of the case, while trying to ascer- tain the motive of the prosecuting witness and other things that might be questioned. I must confess that in view of the expression of the Supreme Court yesterday on the prohibition proceedings, I belleve it was, I think it is the duty of the court and the prosecuting attorney to determine that question. It has rut me somewhat in doubt as to what stage of the proceedings that investigation should be had. If it is the duty of the court and District Attorney, preliminarily, before the proceeding has gone to trial, to investigate, or to virtually try some of the lssues of fact, why that 18 a question we should know at this time. I must confess that is not my view of the situation. If your Honor is ready to determine that question at thid time we are ready to proceed with the case. Otherwise I think in justice to all parties we should set- tle that question before we proceed further. I think that is the first thing to be determined as to .whether the question of collusion or fraud should be settied at this time befors we take further proceedings in this court. I think the Supreme Court, if my recollection is correct, the other day in a civil action—I am just giving my recollection, which is hazy— that ordinarily the motive of a party in bring- ing a suit is not a part of the case. BROADER RIGHT EXISTS. And it strikes me that in a case of this kind, where the rest of the people of the State of California. are involved, the motive of the party instituting that proceeding cannot be brought in question. There is a broader right. Thers is the right of the people of the State to be heard in that prosecution. And the prosecuting witness has no other position than that of an ordinary witness in the ra=s and that, If the facts are sworn to. which give the court juris- diction, facts which are sworn te in the com- plaint—if those facts are falsely or fraudu- lently produced of course there are other reme- dies that can be resorted to. Of course I do not dispute the particular question that a court should try a moot question, but if there is an information sworn to before the court by a proper party, that there can be no question as to the court having jurisdiction. I suggest in view of the question that has been brought up here that if the court’should want further light on the question I am willing to do my part in enlightening the court as to. whether or not that matter should be determined at this time. 1 want to say further, If the court please, that the District Attorney’s office will be ready at all times to do what its duty is in this action. In reply to Mr. Moore's suggestion, I sald if my duty called me in that direction I would prosecute this case. What I meant by that Is, that if th@ court determined that this col- lateral matter should be inquired into first. T am ready to investigate that. 1f you determine that that is a matter involved in the issues of the case, one of the material facts in the case, why I am ready to prosecute the matter at this time. Mr. Campbell—If the court please, the only thing I want to say is that the case in the thirtieth California, which counsel cites, does not cast any light upon this proposition. Coun- sel cannot cite a case, and has not cited a case, and I undertake to say that he cannot find a case where the motive of a person in instiga- ting a criminal prosecution can be inquired into for the purpose of dikmissing the prosecu- tion. Mr. Moore—That is absolutely inaccurate, Judge. There are some cases which I cited from the criminal textbook where a man makes & complaint against himself. Mr. Campbell—A man cannot make & com- plaint against himself. That is not a motive. If a man goes into a court he cannot make & complaint against himself. That is absolutely ridiculous. But where the wheels of a crim- inal prosecution have been put in motion by a citizen, anv citizen having the right to lodge an information before a committing magis- trate—that the motive which induces him to lodge that information can be inquired into by your Honor will determine what the statuts plainly and distinctly points.out you shall de- termine. They cannot find a decision in the United States or in the criminal jurisprudence anywhere. JURISDICTION NOT OUSTED BY EXAMINATIONS R. PRESTON—TI want to add one word, Mand that is this: That the determina~ tion of your Honor is not the determina~ tion of a court: it s the determination of a committing magistrate: and the determination does not reach or touch the doc- trine of res adjudicata. You are not sitting as a court. And in the case of People versus Co- hen, where Judge Wallace, sitting as a Supe- rlor Court, had the witnesses sworn by his clerk, the Supreme Court dismissed them on a charge of perjury upon the ground that a com- mitting magistrate s not a court, and that Judge Wallace, as a Superfor Judge, ditting as a committing magistrate, had no right to have the clerk of his court swear the witnesses. So that a great deal is said about courts here and decistons and res adjudicata which has no place here. So far as this case is concerned it does not impair or conflict or impede in any way with the jurisdiction cf any other court where the venue can be properly laid for this offense. And the Supreme Court has determined again and again, and the other courts have deter- mined as a question of law, that there may b any number of examinations before a commit- ting magistrate. Consequently there is noth- ing to oust jurisdiction. And I simply want to add-one word more, and that is: That it is & most _extraordinary proceeding, speaking about motives and questioning the motive of a move- ment had before your Honor as to the motive of the gentleman who Is represented here so ably by Mr. Moore. In appearing in a case in Which case they said he has no interest, and in which case he has not sufficient beneficial inter- est to maintain an application for a writ of prohibition. Mr. Moore comes here of course, as he says, as an amicus curiae. But what is— if you are speaking about motive and opportu- nity—whom does Mr. Moore represent? What 1s his motive in forcing his way into this pros- ecution, to which he is a stranger and to which the gentleman whom I think he said at other stages of this case he had represented is also a stranger—so decided by the courts. So that the balance hangs evenly in the scales, so far as that is concerned. And I repeat that I wish to impress upon your Honor, in considering this question, that the decision does not bring up the doctrine of res adjudicata. and that this is stmply a committing magistrate holding an ex- amination, which is mot a bar to any other committing magistrate hoiding a similar ex- amination, wherever the venue can be properly laid. So it is hard to see what harm or injury results, and where all these disastrous conse- quences flow so vividly depicted by the gentle- man. UNDER ADVISEMENT. The court—Gentlemen, I will take this ques- tion of collusively obtaining jurisdiction under advisement until to-morrow morning, and at that time, if I decide that I shall hear the mat- ter collaterally and take evidence in respect to collusfon, 1 will proceed, but I think the main case had better be continued until Monday and the witnesses are instructed to return here on 1 Monday. WIIl you be ready to proceed at that time, Mr. Whiting? Mr. Whiting—I think the prosecution will be readv: ves. alr.