Los Angeles herald., 1891-05-28
JUDGE SMITHS BLUFF
His Honor Takes a Lecture
From McLachlan.
The Features of the Fleming
Case Yesterday.
Some Decidedly Coarse Language
From the Bench.
District Attorney McLachlan Does Not
Scare Mt Threat of Judicial
Severity-F1eming's Attor-
neys Attempt to Get
New Trial.

The proceedings In the flemlng case
in department one OF the superior court,
yesterday afternoon, were not lacking in
interest, although when an adjourn
ment was taken at o'clock sentence
had not been passed upon the con-
victed man, and the motion for a new
trial was still undecided At 80 Judge
Smith took the bench, and the case was
called, the defendant being represented
by Messrs. Gage, Carran and Pendleton,
and District Attorney McLachlap and
G. @. McComas appearing for the state.
Judge Smith Immediately made a
ruling on the motion OF defendant to
correct the minutes, denying the prayer,
and III. I. Gage for Fleming then for
mally presented his motion for new
trial, for the following reasons: Because
the trial was held in the absence of the
defendant, the information being for a
felony; because the jury received evil
delce out of court; because the jury
had separated without the leave of the
court after retiring to agree upon ver-
dict; because the jury had been
guilty OF misconduct in accordance
with which a fair consideration OF
the case was impossible; because the
verdict had been decided by lot and by
means giving other than fair express
sion OF the views of each juror; because
the court had misinstructed the jury on
points of law because the court had
.misruled on points OF law during the
trial; because the verdict is contrary to
law and contrary to the evidence intro
l.nn
been discovered since the case was de-
cided.
This motion was based ON large pile
Of affidavits, which Mr.. Gage then pro-
ceeded to read They were, in brief, as
follows:
J. X. Gardiner swore that on May 18th,
the second day of the trial, Fleming
was in G. w. Pendleton's Office from
IL 80 to 2 p. M, during the progress of
trial. Geo. B. Beebe swore to the same
fact.
j. X. Moropholis swore that he called
Fleming out into the hall on the 18th,
during the progress of the trial, and con-
versed with him for five or ten minutes.
G. w. Pendleton swore that on the
14th Fleming was absent from the court
room while the affiant was testifying /;
also that on the 10Th, after the jury had
taken the case, he came into the court
room about o'clock and found some Of
the jurors there reading newspapers and
talking with j. f. Blunt, reporter, and
with another man named Black. Other
members of the jury were in the closets
and some were in the halls.
s.. j. Fleming, the defendant, corrob-
grated the statements made in the other
affidavits as to his being a absent from the
court room, and further said that during
the argument of the case, on the evening
of the 14th, he heard a juror named Rich
mond say on the stairs after adjournment
"D--n him; he's guilty and Well sock
1T to him."
j.. Blunt swore that on the evening
of the 10Th he was in the court room
with about six members of the jury and
a man named Black. G. w. Pendleton,
of defendants counsel, came in and one
of the jury said to him. "How would
you like to be in my place ?"
This last affidavit was objected to be-
cause the district attorney had not seen
it and had chance to read it, and was
therefore stricken out.
The counter-affidavits of the prosecu-
tion were not ready, because three of
the jurors, who were then out in the
Abbott case, and who were on the Flem-
ing jury, had not been able to see and
swear to certain statements. After
Judge Smith had called Assistant Dis
trict Attorney McComas to account for
causing a delay, G. G. Stephens. Alb
bott's counsel, was called for and his
consent obtained to the jurymen reading
and signing their affidavits. This was
done in open court, but Attorney Gage
objected to their being fled at this late
day, claiming that they were new mat
ter, and he should have chance to see
them and offer rebuttal.
Judge Smith had been getting very
restive under the continued delay and
the signing of the affidavits, and began
to critiscise the district attorney. He
said:
eff the counsel think this slipshod
method of presenting affidavits at the
last moment, is the proper way to do
business, / don't. Even if made no order
to that effect, the prosecution should
have had its statements ready by Tues
day night at least they had plenty of
time surely, for they were served with
the affidavits of the defense, according
to my order, on Tuesday night. / don't
like this slobbering along"
District Attorney McLachlan had be-
COuC fOlJ iC6JlNO Vic COQIb D
severe structures and with anger in his
voice, he arose and said:
IF the court please, wish to defend
the dignity of my position. l have
practiced in many states and have yet
to learn that counter affidavits contain
ing. as in this case, no new matter,
must be filed before it is time for the
argument. 1t is easy enough for the
court to sit There and critiscse the dis
trics attorneys Office, but, sir, resent
the imputation that we are 'slobbering'
along, and ="
"Mr. McLachlan, if you continue, or
repeat what you lave said, will fine
you for contempt" interrupted the
court.
''Well, you can do so," continued the
district attorney.
1t seemed for moment as if the Judi
cial dispeasure would manifest itself in
large-sized fine, but the court con-
cluded to let the matter drop, and, turn
ing to Attorney Gage, offered to allow
him reasonable time to look over the
affidavits- of the prosecution. Half an
hour was agreed upon, and recess was
accordingly taken.
When court reconvened, the affidavits
of the prosecution were read. They
were signed by the following: F. II.
McAllister, @. G. McComas, r. f. Sepul-
veda, Harry Richmond, James Nelson.