The record-union., 1893-01-18
PALMER'S SECOND TRIAL.
The Defense Questions the Compe-
tency of Judge Prewett
To Try the Case, But the Judge Holds
That He Is-Continuance De-
nied-No Jurors Yet.

Inc SecODQ lTlal OF IL. D. rainier, LOT
the murder of Charles w. Phleger was
begun in Department Two of the Supe-
rior Court yesterday, Judge Prewett of
Placer County presiding.
District Attorney Ryan, assisted by C.
T. Jones as special counsel, appeared for
the prosecution. General A. L. Hart and
A. j. Bruner appeared for the defendant.
General Hart said he had an affidavit to
present in relation TO the Judge, but i'll
presenting it no offense to the court was
intended.
1t affirmed that the presiding Judge
was not competent to sit in judgment on
the case.
Judge Prewett replied that the taking
of offense depended very much on the
nature of the objection to be made. He
did not think he would hear the objec-
tion, as his manner of dealing with it
might chance to be very unpleasant to
counsel.
General Hart stated in reply that it did
not deal directly with the Judge himself,
but with the Judge who had named him
to hear the case.
"Then,' said Judge Prewett, "Iithink I
will hear IT,"
The affidavit was then read. 1t set forth
liminary proceedings in the case were
taken Judge Johnson was law partner
OF Z. L. Jones, and had consulted with
Jones in regard to the evidence and the
policy OF the prosecution. 1t claimed that
Judge Prewett was not appointed by the
Governor in accordance with the law, but
had been appointed by Judge Johnson,
and that the disqualification of Judge
Johnson extended to Judge Prewett.
Charles L. Jones asked 10 be sworn,
and testified that Matt +. Johnson and he
had not been law partners for years; that
he had absolutely nothing to do with the
case, and that their occupation of the
same Office was their only association.
Judge Johnson also made statement.
He said he had never at any time eX-
pressed an opinion to the effect that he
was disqualified to try the Palmer case.
lie had, however, felt delicate about sit
ting in judgment upon either this case or
that OF George Ii. Smith, because being
i'll and about the office of Mr.. Jones he
had heard more or less OF the evidence,
and might have possibly formed some
idea as to the guilt or innocence of the
accused. For these reasons he had de-
sired that some other Judge should Sit in
trial upon the case, and he had therefore
appointed Judge Prewett.
Judge PreWett said that some un-
wanted reflection had been made both on
Judge johnson and himself He could
not discuss the subject in temperate
language, aud would therefore simply
overrule the motion in reference to the
disqualification alleged. He directed
Mr.. Hart to proceed with the trial
A. j. Bruner then presented another
affidavit. This one asked for continu-
ance on the ground of the absence OF ma
terial witnesses, naming b. s. Kaup,
Thomas A. Brady George +. Lowery, j.
j. Merkley. J. +. Richardson and George
w. Hancock. 1t was recited that by these
witnesses It could be proved that Phleger
had threatened Palmer's life; that by the
prosecutions of Phleger and others the
defendant had been driven insane, and
that Phleger always went armed. 1t also
alleged that George +. Lowery, when an
inmate of the County Jail, had noticed
that Palmer was subject to insane fits:
that Lowery is now an inmate of an in
stitution in Kern County, suffering from
q gunshot wound.
District Attorney Ryan objected to an
other continuance. lie said a similar
motion was made week ago and if this
continuance were granted similar mo-
tions would be made again and again.
he did not believe the motion was made
in good faith, and he stated that the sub
pena for Lowery was not issued until
January 9Th. kaup is out of the State,
and there is not much likelihood of his
coming back. The affidavit states that
hlcuaIusOH lS III Ol consumption, ana The
District Attorney did not think
that, from the nature of the dis
ease, he was ever likely to appear
IN court. He was perfectly willing
TO have dispositions of Richardson and
Lowery taken and introduced in evil
dence, and would admit all of Kaup's,
except that portion in which he swore
that Palmer was not drunk when he
drove his horse at full speed one day in
pursuit of imaginary persons. Witness
Merkley was frequently in Sacramento,
and could easily be found, and Hancock
was even then in the room. An attach
nent for witness Brady had been issued
last October, but he had never been found.
G. L. Jones was willing that the testi-
mony of Kaup, Merkley and Richardson
should be read and admitted. The vital
question was, "IS this defendant sane ?'
The absent witnesses could prove only
isolated circumstances, and it was not
right to grant continuance on that
ground. District Attorney Ryan agreed
with him not TO oppose a continuance if
1t could be shown that the delay could be
had without an abuse of the discretion of
the court.
General Hart contended for the right of
his client, under the Constitution, to have
a DtGd U0ce examination of the witnesses,
that their manner might be noted and
their testimony heard as it came from
their lips. This right was so firmly es-
tablished that when the point is raised
the highest tribunal in the land refuses to
even read written evidence.
Judge Prewitt said he would decide the
motion at ll:45 o'clock, till which time he
declared a recess.
When the court reconvened the Judge
denied the continuance, and the remain
der OF the day was occupied in examining
jurors, but none had been secured up TO
the adjournment of the court
The case will be resumed this morning.