Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1880-10-20
BENSON D. REcKLEY.
His Arrangement Motion for His Dis
charge Cverruled-Plea of Not Guilty.

the Grand Jury for the crime of manslaugh-
ter. Upon being arraigned, and previous to
pleading, motion to set aside the indict-
ment was made by his counsel, c. T. Jones,
upon the ground that it had not been found.
Endorsed and presented as provided in the
Penal Code, and for the further reason
that no indictment or information had been
found or fled against the defendant within
thirty days after he had been examined by
| magistrate and held to answer. MIR. Jones
stated that the objection to the form, ETC., OF
the Indictment was at this time only technl.
cal. and that he relied upon the discharge of
the defendant, either upon the ground OF no
indictment or information having been filed
within the time expressly required by statute;
He held, that inasmuch as the defendant had
been held to answer in due form, it was the
duty of the District Attorney, under Section
500 of the Penal Code, within 80 days there
after, to file in the Superior Court an inform
alton charging the defendant with the oGense
for which he had been committed. That the
defendant had been duly held to answer to
the crime of manslaughter, on the 9th
day of July, 1880, and that since
then no information had been filed
in Court by the District Attorney,
nor was an indictment found against the de-
PENDANT until the 10Th day of October, 1880,
to which indictment the defendant was now
| called upon for the first time to plead. In
| support of the motion, counsel cited portions
of Sections 1882 and 1888 of the Penal Code,
which read as follows:
Section 1892. The Court, unless good
cause to the contrary is shown, must order
! the prosecution to be dismissed in the follow
ing cases Where person has been held to
! answer for public offense, if an indictment
| is not found or an information fled against
| him, within thirty days thereafter.
"Section 1888. If the defendant is not
charged or tried, as provided in the last sec
ton. and sufficient reason therefor is shown,
| the Court may order the action to be contin-
ned from time to time, and in the meantime
may discharge the defendant from custody on
| his own undertaking of bail for his appear
ance to answer the charge at the time to
which the action is continued"
| In opposition to the motion, District At
torney Buckley stated that he had not filed
an information against the defendant for
manslaughter, because, in his Judgment, the
defendant should have been held to answer
for higher offense and that having been
held to answer for manslaughter, the law
would not permit the fling of an information
charging greater offense. The District At
torney also expressed grave doubts as to the
constitutionality of the law authorizing the
trial of capital offenses by information, claim
| ing that the Supreme Court had as yet failed
| to pass upon the matter, and until that tri-
bunal had sustained the law he preferred to
submit important cases to the Grand Jury;
that by an Act of the last Legislature no
more than one Grand Jury can be impaneled
| in this county in any one year and that the
Grand Jury which indicted the defendant
was the first and only one impaneled since the
offense under consideration was committed.
Mr. Buckley argued that the new Constitu
ton did not abolish the Grand Jury system
of prosecutions, but merely authorized
| the Legislature to direct whether
prosecutions should be conducted by
| indictments or informations, or by both
and that the Legislature had by statute de-
| clared that criminals might be prosecuted by
either method. The next Grand Jury will
probably meet in October, 1881, and should
the so-called information law be declared un-
constitutional (if defendants position be cor.
rect) persons cannot be indicted who commit
| crimes thirty days previous to the meeting of
that Grand Jury. The defendant was held
to answer on the 9th day Of July, and mas
much as he was indicted by the first Grand
Jury which met since the commission OF the
| otfense, he claimed it to be sufficient reason
and good cause, under Section 1888, why an
| indictment was not found within thirty days
subsequent to the 9th day of July.
L pom conclusion of the argument, the Court
decided, first, that the District Attorney, be-
lieving that instead Of being held for man
slaughter, the defendant should have been
held for murder, and that filing an informa-
ton for manslaughter would afterwards
preclude trial for higher crime, was suf-
ficient cause for his not filing an information
within 80 DAYS. Second, that inasmuch as
there was 10 Grand Jury in session prior to
the cne which fouad the indictment, and only
one can be impaneled under the present law
each year, the finding of the indictment in
this case is good as complying with the spirit
of the section referred to. The motion to get
aside the indictment was therefore overruled,
and the defendant pleaded not guilty.
The counsel for defendant then made mo-
ton that defendant be allowed to go, awaiting
trial, upon his own recognizance, and claimed
this as an unquestisned right under the above
section, in which he claimed that the word
'smay" was mandatory, meaning that the
Court shall accept the personal recognlzance
of the defendant.
The Court decided that the language was
not mandatory. and required that bonds in
the sum of $1,000 be given, which was COM
piled @jth.
AUCTION SALEs.-F. w. Wilson, of San
| Francisco, will commence the sale of his
mammoth consignment OF dry goods to-day,
| D. J. Simmons, auctioneer, at SIS j street,
| between Fifth and Sixth streets, and continue
each day at 2 and P. NJ until the entire
consignment is sold -. Martin Plug L Co.
win sell this morning at 1880, at their sales
room, No 10l6 Fourth street, one piano, one
| harness wardrobe, two showcases, one baga-
| telle table, two iron safes, bedstead, beds and
bedding. Also, one fine riding or driving
horse, 5 years old one nearly new light
spring wagon.
REAL ESTATE SALE.-Sherburn l. Smith
will sell at auction at II a. NJ. to-day on the
| premises, the real property on the southeast
corner of the alley on Fifth, between N and
o streets The lot is 40xS0, with good one
story basement brick building upon it, about
30xG0, which is suitable for store house, shop
| factory, or could be converted into dwell
ing-house.
RED MEMS REcEPTIoN.-Eugene Lehe OF
| Stockton, Great Sachem Improved Order of
Red Men, will pay an official visit to the
tribes Of this city this evening, on which oc.
casion a reception will be rendered him at
the Masonic Hall building by the members
of the Order in this city and their lady
friends Dancing and social entertainment
will follow.
MEETING ON SECOND STREET TONIGHT
Hon. C. C. Conger, of San Francisco, will
address the people of Sacramento this even
ing on the issues of the campaign. The
meeting is to be held on Second street, In
front of the Union Hotel Workingmen are
particularly invited to attend.
POLICE CoURT.-In the Police Court yes
terday all the cases coming before it were
continued as follows: All Woey, vagrancy.
till to-day the cases Of +. Baldecchi, bat
terry, and two for disturbing the peace against
Mrs. Hopper, were continued till the I'D
instant.
SMALL RUSAwAY-The rancher's team that
ran away yesterday, started on Fifth street,
and in turning into K street, upset the
wagon, but it soon righted itself again, and
made rapid work as far as Seventh street,
where gentleman succeeded in stopping
them.
NEW BoILER.-Upon examination and
recommendation of Chief Engineer j. A.
; Cunningham of the City Water Works, the
boiler at the Court house has been condemned
as unsafe, and plans and specifications have
been ordered for new one.
. GRAND CONCERT AND BALL.-A grand
concert and ball will be given by the Turner
Harmonic, at Turner Hall, Tuesday evening
,, October Goth, under the leadership of Prof
! o. Fleissner. Talented artists and new feat