The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1891-11-07
BRUNER IN sELF-DEFENsE.
Judge Wallace Refuses to Set Aside Hi.
In ic IN ents.

BRUNER IN SELF-DEFENSE.
Judge Wallace Refuses to Set Aside His
Indictments.
ElwoOd Bruner, the indicted Sacramento
Assemblyman, was the central object of in
terest in the densely crowded courtroom Of
Department 6 yesterday forenoon. where he
again appeared, unaccompanied by his at
torney. to proceed with the argument in his
motion TO set aside the Grand Jury indict-
ments found against him for malleasance
and Ierjury.
lie responded to the announcement Of his
case by explaining that he was in the same
predicament as on the previous day. His
attorney, J. c. Cam pbell, while not sick in
bed, was yet unable to endure the fatigue of
long ana trying argument. He would
therefore be obliged TO argue his own case.
He first called Barclay Henley, foreman
OF the Grand Jury, TO whom he put the
question:
WAS it upon the testimony gave before
the Grand Jury that was indicted for per-
iury?"
District Attorney Barnes objected, upon
the ground that the members Of the Grand
Jury cannot be questioned as to anything
done in the jury-room.
Judge Wallace sustained the objection.
PREJUDICE CLAIMED.
MI DEuIeI lutu attempted 10 SHOW prelu-
dice on the part Of Foreman Henley, mas
much as he had consented TO serve on the
Grand Jury when by law he was exempt
from such duty
Mr.. Henley said he was summoned by
Elisor Scott. and had not chosen to take
advantage OF the exemption granted him by
law.
Did you not say to w. II. Nelson"
asked Bruner that you did not wish
TO go upon the jury, and only consented to
do so at the earnest solicitation of certain
personS?'
Mt Barnes Selection was sustained.
Judge Wallace said il did not make any
difference how Mr.. Henley got on the jury
II he was not biased.
Burners attempts to elicit from the
witness whether he had authorized special
counsel TO prosecute cases. or had conlribu-
ted money 10 employ detectives, were de-
feated by the Judges ruling.
Bruner objected strongly to the courts
ruling. He maintained that the questions
he WAS asking were going directly to the
matter Of bias.
Judge Wallace said that the only ques-
lions that could be asked now would be
such as might have been asked by person
held 20 answer before the impeachment of
Grand Jury. The ruling was purely statu-
tory.
To save time the District Attorney adj
mitted, at idr Burners request, that the
same questions had been put to Jurors
Cleveland, Lynch and Cubery.
SAME OLD ARGUMENT.
Mr.. Burners argument was in many re-
spects similar to that made by c. b. Darwin
before Judge Murphy In the haceas corpus
case CT Richard Chute. An eliSor could not
have any legal existence until due showing
had been made that both the Sheriff ana
Coroner were disqualified.
The Constitution provides that a Grand
Jury shall be drawn and summoned at least
once year In each county. The word
drawn clearly meant to draw from the
box, and the Legislature therefore had no
power to prescribe any other method. This
narrowed the whole question down to the
constitntionality Of Section 22G, Code of
Civil Procedure, in compliance with. " hich
the present Grand jury was created.
OF course you~know that a Grand Jury
was drawn here in the sense you are con
tending for q said Judge Wallace.
mo, SIR" replied Bruner, II do not
know that. have made the point that no
Grand Jury was legally drawn. Nineteen
men constitute the jury, and l contend that
until they are taken from the box there is
no Grand jury"
DRAWN" AND DRAWN"
You know, as matter of fact" said
Judge Wallace. that twenty-five names
were drawn from the Grand Jury box; that
that eight were excused for legal and suffi-
cient reasons. Whereupon the elisor was
appointed to summon nine good and lawful
men. You know this from the record 40
you uotp Twenty-Five names were drawn
as you contend for"
Bruner admitted all this, but maintained
that the elisOr methods invalidated the
panel.
In defense of his position that a Grand
Jury could not compel him to testify against
himself Mr.. Bruner quoted the Federal
Constitution guaranteeing to every accused
the privilege of such refusal He also made
the point that the law does not authorize
any less number than nineteen to act on
any Indictment Every accused is entitled
to the consideration of the entire Grand
Jury.
District Attorney Barnes, Attorney Cen
eral Hart and ex-JustIce Rhodes argued in
defense Of the indictments
MIR. Barnes construed the word drawn"
as meaning simply to create. As to Bru-
ner'S position, that he could not be made n
witness against himself, he replied that
there was nothing to show that he ever had
been made such a witness. No one had
been accused when he was called before the
Grand Jury. He was simply a witness in
Judicial investigation; The facts developed
hau resulted in an Indictment Mr.. Barnes
read extensively from nm Oregon case, In
which it was held that as there are no de-
PENDANTS or co-defendants in an examlna-
alton before Grand Jury no witness can be
said to testify against himself in such an
investigation. II is only after an accusation
is made that person cannot be compelled
to testify against himself in ANY criminal
case"
THE COURTS OPINION.
Judge Wallace said that according to his
understanding OF the law a man cannot be
compelled to testify against himself, but
there never has been any question that if an
accused person desired to criminate himself
he could do SO. The law says practically
that no person shall be condemned out of
his own mouth, unless he is willing to waive
the privilege of refusing to testify.
Ex-Justice Rhodes confined his argument
chiefly to the question Of jurisdiction, main
tanning that jurisdiction once shown all else
was merely a question of possible error or
irregularity. He then followed the entire
proceeding of impaneliDg the Grand Jury,
showing where every step taken WAS In COM
plete obedience to the statute. A collateral
attack cannot be made where jurisdiction is
clearly established; it can only be direct
and the only way to build up such an attack
would be TO prove something to contradict
the record. In the absence of such proof
the record cannot be attacked.
Bruner still held that the Grand jury had
not been drawn in accordance with the Con-
stltntion, and the controversy again settled
on the constitutionality of the section in the
Code of Civil Procedure.
Judge Wallace said he had heard nothing
In the argument that appeared to him as
good reason for setting aside the indict-
ments; he accordingly denied the motion.
THE DEMURRERs.
LA