Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1880-05-18

and thew were now in Court. 1t could not
be assumed that Mccarthy knows what
proper publication is. Beside that, he had
not placed much stress upon the publication
Of the order to print first drawn, because
the fact was that before its passage, and
even on the very night of its passage, the
order was amended, and he held, and all
along so stated, that the order as amended
had not been published prior to passage.
Probably Mccarthy referred to the first pub
LEGATION of the order in his statement in the
dispatch.
After some further debate it was agreed
that what testimony was to be put in should
be offered, and that Mr. Murphy's applica-
ton would be considered if the situation
demanded it.
The Court, from the outset, manifested a
wearied disposition and desire to have the
case come to as speedy conclusion as pos
sible
MIR. Barbour-The first witness we offer is
John A. Russell, clerk of the Board of Su-
pervisors.
Mr.. Smoot-We object to the introduce
ton of any testimony. The record is the
best testimony here.
The Court resolved to hear the testimony,
reserving its opinion as to its admissibility
hereafter.
Mr.. Russell was sworn, and said he had
brought the original record of the passage of
Order 697 and certified copy of the records
of all things transpiring in the Board Of Su-
pervisors relative to that order.
Mr. Murphy objected strenuously.
Justice McKinstry-All possible and mag
Unable objections you could make are con-
sidered in, and may be argued by you here
after.
Mr.. Russell-This is the order as passed to
print, April 23d, and finally passed May 8,
1866. l was Deputy Clerk then. This is a
certified copy of all the minutes of the Board
of Supervisors relating to the passage of the
order There was no special order made to
publish the order. The Clerk did that. He
published it, as a matter of course in the Of
fetal paper-the Flag. This is the order of
December, 1874, making the Examiner the
official paper. l have here
CERTIFIED COPIES
OF all minutes relative to the passage of the
amendatory sections of Order 697, as en-
braced in subsequent order-1196. All or
ders are kept in an order book. have copies
of the Flag, but no complete file. We are not
required to keep one. The Recorder kept
file. as required by law. 1t is here. All or.
oi iances are signed by the Clerk and approved
by the Mayor.
Justice McKinstry-Does the Consolida-
ton Act require an ordinance to be published
after passage?
Mr.. Murphy and Mr.. Barbour-No, sir.
Mr.. Russell-Order 1876 was published, to
my own knowledge, ten times before passage,
in the Examiner the official paper.
Mr.. Russell here made Mr.. Belder, the
shorthand reporter of the Court, his deputy,
and put all the papers into his custody and
retired, to return to San Francisco.
Mr. Merriam, Deputy County Recorder of
San francisco, was sworn. He produced two
bound lots of the Americdn Flag newspaper
for April and May, 1866, being all there are
on file In the Recorders Office for those
months. He produced the file also of the
Examiner for December, 1874. All these
files Mr. Barbour offered in evidence. Wit
ness, in reply to Mr.. Smoot, had examined
the Flag files for April II, 1876. He could
not say there was no Supplement for that
day, though supplements appeared on the
18th. 18th and 10Th with the ordinance in.
He did not know that there were no supple
ments for the days when none appear in the
file. The file was complete so far as he knew.
To Mr.. Barbour-It appears in the papers
of the 25th, 26th, 9th and 18th the 10Th
was Sunday it does not appear on the 30th.
To MIR. Smoot-Do not know if a supple
ment was not published on the 30th. All the
official notices were in the supplement.
THE SUPPLEMENT.
Was seperate sheet The papers were kept
in rolls and tied up, and once in six months
taken down and bound. A supplement could
be lost.
To Mr.. Murphy-April 10th, it appears
here that there was supplement it is miss
ing on the 18th, but is here on the 18th, 10Th
and 20ch.
Mr.. Murphy-We will supply that missing
link of the 18th.
Witness-The next publication began on
the 25th.
Mr.. Barhour-After they began to print it,
they amended it, and began to republish it,
aud the republication is important here in
one respect. On the night of its final passage,
MAY 81, it was again amended, and after that
vas not again published.
Mr.. Smooth the sections at issue here
were not amended, then
Mr.. Barbour-That is matter of law to
be argued hereafter.
THE RECORD.
James E. Hughes, Clerk of the Police
Court of San Francisco, was sworn, and pro-
duced the minute-book showing tile trial and
conviction of Kearney.
Mr.. Murphy objected, as tending to i'm
peach the judgment of the Court, as returned
here on the record Overrulee.
Witness produced the original complaint
and other papers. He was asked for the
statement on appeal 1t was objected that
that document is the record of the appellate
Court and the Clerk can produce nothing to
contradict it.
Justice McKee-We desire to see all records
pertaining to the Judgment of the Court, and
leading to it.
Mr.. Barbour-One statement never went
up. 1t has disappeared.
Witness-I have not the statement. 1t
went to the upper Court. l do not know
that there were two statements made. March
l2sh the first entry regarding Kearney appears
in the Police Court minutes. Witness read it.
1t shows that the case was called up on a
charge for using profane and obscene Ian
guage, regarding Claus Spreckles, tending to
create breach of the peace. March 18th the
case was called for hearing and plea of not
guilty entered. Defendant then waived a
Jury trial and consented to be tried by the
Court. Witnesses were heard, the ordinances
under which the defendant was charged were
proved and the Court took the case under adj
visement. On the same day second case
against defendant was called up. 1t was for
using threatening language having tendency
to create breach of the peace. On that
charge, after trial, the defendant was by the
Court dismissed.
CoMPLICATING.
To Mr.. BarbOur-Witness said that there
is an interlineation that defendant waived a
jury trial. made the interlineation because
1t was fact. All the minutes are written
after trial always. There is no mark TO show
attempted erasure of that interlineation ex-
cept as to one word, and that is erased. The
Court here examined the book.
The Courts it expected we are to ex-
anime on habeas corpus to see if jury trial
was or was not waived and that the Court
record is fslsifed,
Mr. Barbour-Yes that certain constitu-
tional requirements were not observed.
Mr.. Nurphy-That Is what we hold can
not be done on habeas corpus.
Mr.. Smoot-The Judgment of the Court
declares that jury was waived, and this
Court will assume the declaration to be the
truth-as it is.
Justice McKinstry-I understand We are
now at the mercy of the counsel to introduce
whatever they please. Merriment.
Witness ito Mr.. Murphyl-The Court
ordered the minutes written up in accord
ance with the facts in full March 2Tth-a day
subsequent to the trial of the case. This
record witness read The record of the 9th
shows both parties waived lury.l
Chief Justice Morrison-Is there anything
requiring the minutes to be written up on
the same day!
Mr.. Murphy-No, sir; the Court can COM
plete its record when it pleases.