The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1891-12-01

testify
George r. B. Hayes who is an attorney.
was that witness. He testified that at one
time lie advised the defendant in reference
10 his trouble with THE CALL.
DID you know of any arrangement IN
regard to the immunity from prosecution II
certain things were done?"
II had certain conversations with MesSrs.
Mastlck and CrGthers.
't"What was the date OF your converse
tions?" asked Mr.. Hnkle.
NAV. 1890"
An objection was interposed by the prose-
cutinn because this was aftsr the signing of
the statements aud was sustained.
MR.. DARwIN's CONTENTION.
Mr.. Darwin commended that the testimony
was proper because any statement made by
any of the parties in interest on the other
side, at any time, would go to prove what
the defendant claimed, namely that there
was q promise OF immunity from proSecu-
ton.
Judge Trout ruled as he did as to the
witness Hume. but. the prosecution with
drawing all objection. the witness was
allowed to go on. He said: "Mr. White
handed me a paper which was bill of sale
of his furniture and which he said he had
been asked to sign. | took that paper to
the office of Mr. MaStick and said to him,
y on are pressing this matter too far; why,
you want to take his furniture from hint. and
he will not under my advice sign that paper.
He ought 10 be given q chance to earn
living for his WIFE Mr.. Mastick said that
he old not have anything to do with that
matter, that Mr.. Crothers had had charge of
that. and he sent for Mr.. CrotherS. While
waiting for him we bad some further talk
about the matter, during which he said that
he was averse to any criminal prosecution"
The witness retired. but after a cUnSulta-
ton between defendant and his counsel he
was recalled, and testified that subsequently
he was shown a paragraph 10 a newspaper
TO the effect that tina Grand Jury was iuyes-
tigating the White Kerr defalcation. He
went TO Mr. Mastick again, who told him
that he did not have anything to do with it;
that he lad spoken TO MeSSrs. Fitch and
Pickering in relation 10 criminal proSecu-
ton, and had advised against it, and that
Mr.. Pickering had lost his temper several
times, and declared that he would not be
controlled by any lawyer.
MI. Hume was recalled and said that
when he saw Mr.. Fitch the lattor said he
did not care 20 be Interviewed about the
White ease. rs Ii was a family affair and a
private matter. The witness said lie asked
property and he said: " \ eS; this matter
is entirely settled" He also said that in an
swer TO question Mr.. Fitch said that prob
ably White would not be prosecuted.
AFTERNOON SESSION.
An adjournment was taken until o'clock
IN the afternoon, at which hour Mr.. Fitch
was recalled. lie said he remembered hay
ing had an interview with a young man
from the Chronicle shortly after White lett
TIE CALL. AT that time" said Mr..
Fitch, I'VE were anxious not TO give the
public any information on account OF Kerr
who was a party TO the transaction. be-
Ing in the East and having. as we believed,
considerable of our property. | was aRXi-
Gus not to create an alarm aud deter him
from returning. l certainly did not tell
that young man that everything had been
settled, Tor we were at that time trying to
save all the pros erty We could | did not
care to give him any information, as we had
the means 10 impart that information if we
had so desired, but it was our purpose to
keep the matter quiet fer while in order
not 10 alarm Kerr. did not say that there
would not be any criminal prosecution"
Presiding Justice OF the Peace Charles A.
Low, who interviewed T. Fitch on March
l, 1892, Tor the Examiner. OF which he was
then a reporter, was called and questioned
IN reference to the interview he had with
Mr.. Fitch. The witness desired to refresh
his memory from memoranda OF an article
which he had written for the paper with
which he was then connected.
This was objected to by MIR. Hinkle, but
subsequently he withdrew his objection and
consented that the whole article should be
read.
A file Of the paper was sent for. and F. w.
Kelly, business manager of tie Breeder
and Sportsman, was called by the defense.
He testified that an attachment was placed
On tie paper by the Cal Company, land"
continued the witness. the day after l saw
Mr.. CrOtIers at the Office of the Breeder
and 5 ortsnIan. He said White had turned
over ali his property, and he wanted MT.
Kerr to do the same and tie mater would
be dropped" The witness then said that
during the conversation he had with bIr.
Crothers a female type writer was present,
and he had asked her if she heard what WAS
said, to which she replied that she had
heard what be said, but could not hear what
| MI Crothers said because he spoke so lew.
KELLY's ASSERTION.
Being asked by AIr. Hinke 10 repeat the
exact words used by Mr.. Crothers the wit
ness said: He said that White had turned
over all his properly, and that Kerr had
better do SO. TOO, and that the matter would
be dropped. or that it would end l cannot
say exactly which; ills a long time ago."
Then" said Mr.. HinkIe. you swear
upon your oath that MIR. Crothers told you
that if Kerr turned over his property the
whole matter would be dr0pped?"
lie said that or something similar. He
might have said il would end the matter"
What did you say when Mr.. Crothers
told you that?"
II told MIN that knew Kerr was not in
debted to THE CALL cent, and l warned
him to go slow in any proceedings he took
against the Breeder and Sportsman or it
might result in a suit for heavy damages"
That was your feeling at that time?"
And it is yetP"
Yes"
Did you not afterWard, in Dir. Crothers'
Office. offer him $1,000 to settle the matter ?"
| Objection to the question was raised by
| the defense. and 1t was sustalue ed by the
| Court.
Justice Low was thsn recalled and he
| read column article from the Examiner
! which he had written about the White case
| This included an interview with Mr. Fitch,
| which did not SHOW that that gentleman had
! stated that there would not be a criminal
| prosecution. Ii also contained an interview
| width White. who stated that he was
| charged with embeZzlng funds of THE
| CALL, that he could not tell how much the
amount was as the books were being inves-
| tigated. and that he had lost good deal OF
| money in the poOl-rOoms and on horse
| racing.
This closed the evidence designed to pre-
vent the introduction of the two confessions
| signed by White.
Judge Trout said that he did not see any
| evidence that the statements had been pro-
| cured by duress, or because the defendant
| had been promised immunity. 1t seemed
| that White had made them, hoping to save
himself, and took the chances. He said the
statements had no doubt been voluntarily
made. The statements would, therefore, be
admitted in evidence
| AN INTERRUPTION.
When Mr.. Bnkle began to read the con-
fession, February %, 1890, Mr.. Darwin OBJ
| that Kerr left the office, or the time when
the statute of Limitation runs. He said that
the District Attorney had told him that he
| would not go into the case beyond the time
that Kerr left the office.
| Mr.. HlDkle said be had not agreed to
limit his proof to any particular time and
| that no portion Of the statements was
| barred by the statute of limitations lie
| said that under decisions which he cited in
| cases similar TO the one a: bar, 1t had been
| held that the statute of limitations does not
| run.
Judge Trout was OF the opinion that the
| papers could be read and if there was any,
thing Irrelevant it could be stricken out. Mr..
Darwin did not approve of the suggestion,
and said he did not want matter which he
believed immaterial 10 get before the Jury
He also took exception to the District At
tornoy's position as to the statute Of limi-
tatiOns The Judge ruled that the state
ments could be read and if any portion as
Irrelevant he could, on motion OF counsel for
| the defense, strike Ii ouf