Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1880-08-25

of the men had to uphold him as he moved
away from the scene, while Ferguson, who
was certainly there, saw the shooters 90
| away, ana there was no such thing done as
supporting any one away from the scene of
the murder. Without Jones the prosecution
fails. Draw him out of the case and the bot.
tom falls out of it.
BROWN.
Next he took up the remarkable story of
| the witness Brown. II what he tells is true.
he knew the murder was to be committed
that night and yet slept in his house, which
is in sight of Mores house. He had not
agreed to meet the conspirators, he says.
Had he said so he would have convicted him
self Of murder. But he says Sprague came
| bis house and urged him to join in the mur-
der and he refused, because his wife objected
| to his being out of night. Then he says
Churchill came to him and asked if he had q
gun ano powder, and told him shot and ball
would be given him on the spet, and that
there were men in the scheme who would
see it through, and that they had the road
guarded to prevent the men from the sheep
| camp on the table-land interfering If they
should see the fire. Yet Brown says he slept
in his house that night, and never saw the
light OF the fire, though the barn was but a
little way off across sandy plain, and its
flames lit up the whole country. Brown
swears that he was at Tompkins' house and
talked with him that he had that day had
the conversation with Churchill about the
contemplated murder, and at that time had
just come from Tompkins' house in bis wagon
and had a hog in he had bought of Tompkins.
Yet the defense proved that Tompkins on
that very day was far away in Los Angeles
county.
Mr.. Williams-We proved by Mr.. Todd an
nnimpeachable man, that he had that day met
Brown coming from the direction of Tomp-
kins' place, and that he had hog in his
wagon. And all these facts were before the
| jury and it passed on them.
| MIR. Haymond-Yes. But the jury was
| instructed that there was no evidence tend
| ing to show Brown was an accomplice, and
therefore, l say they were led to believe
that they could convict without the corrob-
Grafton of Brown, and in the Curlee case the
Supreme Court held such instruction to be
error. At this point Mr.. Raymond rested
his argument, reserving the right to reply to
the answer Of General Hart, and at $50 I'm.
the Governor ordered recess until P. NJ.
Evening Session.
Attorney General Hart addressed the Gov
ernor at the evening session in behalf of the
people. He regretted Mr.. Raymond was not
present to hear what he had to say. He was
not appearing to sway the passions or in
dulgs in oratorical flourish. Such was not
his duty. 1t was his duty only to take
calm review of the case, and he was conscious
of his position as the legal adviser of the
Executive, and that for all he should say be
was officially responsible for. AL he should
say would be the result of deliberate convic-
tion after careful study of the case. At this
point Mr.. Raymond came in. He had no
words Of bitterness for counsel who stands
for his client and whose devotion here shows
the lawyers allegiance TO his client has no
equal except in that of the wife for the hus-
band. He should enter into no ingenious
argument to lead the Executive to do any
thing he believed to be wrong. He should
appeal not to the multitude, but to the calm
judgment of the Executive.
THE PARDoNING POWER
He held not to be a mere arbitrary setting
free of criminals punished by the Courts in
obedience to the laws of the State. On the
contrary, the power is limited and controlled
by the provisions of the Constitution and the
Executive conscience under the oath required
by the Constitution. The Constitution saw
every man is entitled to a fair trial by jury
of his country, and on their verdict must
rest his fate. The Governor is asked on q
speech net one-third as voluminous as the
testimony alone, to set free a man convicted
on testimony by jury, in a competent
Court, of willful, idastardly, cowardly murder.
He is asked to undo the work Of the judici-
ary. The one arm or department of the Gov
ernment is asked to stay the other, and in doing
so to review and determine that the great
judicial branch of the Government, headed
by the Supreme Court of the State, has been
guilty of fragrant violation of law. Was
any such demand ever before made? No.
The Executive in determining whether the evil
dence sustains the verdict, and the record sus-
1 4 L r -
of the line laid down for it. Each arm of
the Government must rest upon the Constitu-
ton and the law and cannot go beyond them.
The jury, peers Of the defendant, who heard
the witnesses, saw them on the stand, looked
into their faces, heard their voices, can Judge
better than any other of the truth of testi-
mony-better than it is possible for any other
to do looking at the testimony ON the cold
pages of the record.
THE CERTIFICATE OF JUDGE FAwCETT.
The defendant asks that he be pardoned
because of an alleged false certificate of Judge
Fawcett. He was not there to defend Judge
Fawcett, though something is due to the
dead. But he was before the Governor to
defend the record, because it shows Fawcett
was right that he was not the scoundrel
charged not the liar he had been branded
not deserving of the bitter invective heaped
upon his grave. 81 say, Judge Fawcett was
right and certified the bare truth, and no
more, and will prove it by the record" No
certificate can be higher than the judgment,
and no certificate or judgment exists that can
not be set aside by the higher Court on q
proper showing. Judge Fawcett said Tread
ing from the quotation in the Getty easel the
bill of exceptions consisted of the reporters
notes written out in full, and containing the
side-bar remarks of counsel. Now, the Su-
preme Court said that no such bill of excep-
tions could be tolerated. The bill should be
in narrative form and present only so
much of the evidence as is neces-
sary to illustrate a point This is the Ian
guage of the highest Court in the land, and
| If Judge Fawcett has followed this law as
determined by the highest tribunal, then
submit to all fair minded men if it justified
the terrible invective poured out upon this
dead Judge. In all the criminal jurispru-
dence of the State there is scarce a parallel
to the bill sent up in this case full Of aues-
ton and answer, and question and answer,
and side-bar remarks of counsel. If so it,
Judge Fawcett did but his bare duty in SO
certifying, and II say he certified only to
the truth" MIR. Hart here read from
the bill to show that it contained
side-bar remarks and arguments, Just as
Judge Fawcett certified it did. If the Gov
ernor would ask any lawyer, any Judge
conversant with the law, about it, he would
"
argument, and wholly and entirely out of
place in bill of exceptions. That was but
one page of the LOO; the volume was full of
like errors. But it made no difference for if
Judge Fawcett certified that the bill was but
the reporters notes, it was competent for the
Supreme Court to determine if that was true.
1t was the duty of the Clerk to certify the
certificate, and he did, also to send up what
Mr. Raymond claimed to be bill OF excep-
tions. Then it became the duty of the Su-
preme Court to determine from the record if
it was bill of exceptions, and it did. But
they say Judge Fawcett certified that it is a
copy of tie reporters notes. Well, what of
it! The Supreme Court reads the bill of ex-
ceptions and determines if the bill is proper
one, and does it on principles laid down and
understood, and by Judges sworn to do their
duty, and that tribunal says the bill must be
stated as far as possible in narrative form,
etc., as before stated. These are the princi-
Piles declared by the law of the people on
which Fawcett acted. Never was it pro-
vided that ], 300 pages of testimony should be
sent up for the Supreme Court to read. Sup
pose that to be the law, see what a superhu-
man work, but impossible, would be thrown
on the Courts by the hundreds of cases in the
State. So the points of appeal only Illus
trated by necessary evidence go up. But
they say
THERE WERE ERAsUREs
Al )