Los Angeles herald., 1891-06-03
The Unhappy Preacher Gets
Three Long Years.
His Little Indiscretion Will be
Dearly Paid For.
Judge Smith Denies His Motion For
Rehearing of the Case.
ants Counsel of No AvaIl-His-
tory of the Case.

Rev. Samuel j. Fleming, the fallen
Methodist pastor, stood before the bar
in Judge Smiths court, yesterday, and
heard pronounced the words which will
confine him at hard labor within the
walls of San Quentin prison for the next
three years. The final act in the legal
drama which has proved such a tragedy
to Fleming, was performed in the pres
ence of but few persons. After the
able argument by the defendants attor-
neys, on the motion for new trial. last
Thursday, it was supposed by many
that the court would grant rehearing.
The defendant himself had strong hopes
that another chance would be given him
to prove his innocence, as was apparent
by his light step and cheerful appear
ance when he entered the courtroom,
but the judge soon removed the last bar
which separated him from prison, and,
after reading lengthy decision on the
points involved in the motion, sum-
moned the prisoner to stand and hear
| his fate.
The opinion of Judge Smith, disposing
of the motion, began as follows
-Four points are involved in the mo-
| ton for new trial-first, that the trial
was had in the absence of defendant
second, the misconduct of the jury;
third, that thetcourt erred in giving the
| first instruction for the people,. fourth,
that the verdict is contrary to the evil
dence. There are other grounds alleged,
but the above are the ones relied upon
and urged by counsel in the argument"
The court then reviews the, affidavits
presented by the defense in support of
their claim that Fleming was absent
from the courtroom during the progress
of the trial, but fails to find in them any
positive statement that Fleming was
absent when the jury was present and
testimony was being taken. The affi-
davits of the prosecution are deemed
sufficient to prove the contrary,
and those going to prove that
the absence of defendant was during in
considerable periods only were not con-
sidered. The allegation that Fleming
was absent on the afternoon of the 18th
for about ten minutes when the jury
were locked in their room and motion
was being argued is considered strong
point. All of the authorities presented
by counsel are reviewed, but nothing is
an error was committed, even though
the defendant were absent at this time.
One opinion is quoted which says "The
statute does not say that the trial must
necessarily be had, during its whole
progress and in every part, in the pres
ence of the defendant
The court continues "Even back of
constitutions the defendant had the right
to be present in court and 'be con-
fronted by his accusers, and while this
is his right. and to deny him this right
would be error, still l think it
quite different question if temporarily
on his own volition he absent himself,
and especially in other than capital
cases. In the case at bar the
absence was not only voluntary, but at
no time when the trial was in progress
before the jury; but while motion was
being argued before the court"
In regard to the alleged improper
conduct of the jury the court says that
it cannot see from the affidavits that
anything occurred prejudicial to the de-
fendant.
The Judge said that he considers that
the first instruction, which was OBJ
jected to by the defense, IS good law.
He said: "The criticism is that it does
not tell the jury the degree OF resistance
necessary. But the amount of force
used on the part of the assailant nor the
amount of resistance on the part of the
female do not, both together nor each
of itself, constitute rape. They are means
whereby we determine if the act was
forcibly committed and against the will
and resistance of the woman; but the
jury were repeatedly told in the in
structions that unless she resisted to
the extent of her ability they should
find him not guilty. The plain mean
ing of that is they had right to infer
it was not against her will unless she so
resisted. l cannot see how the jury
could have been misled by that instruc-
ton"
The closing paragraph OF the decision
reads: ''It is claimed the verdict is
contrary to the evidence, in this, that it
does not show sufficient degree of force
on his part and resistance on her part,
in other words that she consented to his
advances. All women do not act alike
in the same status of mind and under
like circumstances. One might show
fight and another remain mute with
fear; one might struggle in one way and
another quite differently, and yet be
making their utmost resistance. This
question was fairly and ably presented
to the jury, both by instructions and ar
gument, and they have passed upon it,
and from my recollection Of the testi-
mony am not inclined to disagree with
them.
motion for a new trial denied"
During the reading of the opinion
Fleming's eyes were fixed on the floor.