The record-union., 1894-08-04
ANEW TRIAL GRANTED FOR BLACK.
Judge Catlin Says the Defendants
Rights Were Invaded.
He Lectures the District Attorney for
Going Outside the Lines Of Evi-
dence in His Argument.

dence In His Argument.
The motion made by W. a. Anderson,
counsel for J. Il. Black-who was re-
Gently convicted of having participated IN
the Wachhorst diamond robbery-that
the prisoner be granted q new trial, was
heard in Judge Catlin's court yesterday.
It was based on the ground that the Dis
trict Attorney, in the trial Of the case,
went outside the evidence and made state
ments concerning Black which had the
effect of prejudieing the jury against MIN.
Judge Catlin found that the ground on
which the application for new trial had
been made was sufficient. In granting
the motion, the court said:
NOT FAIR TRIAL.
The motion for new trial in this case
is made upon the following grounds:
First-That the verdict Is contrary TO
the evidence.
Second-Upon newly discovered evil
dence material to the defendant, and
which could not with reasonable dill
gence have been discovered and produced
at the trial.
Third-Certain alleged misconduct of
the District Attorney in the conduct OF
the trial by reason OF which the minds OF
the Jurors were biased to such degree
that the defendant did not have Ialr
trial.
l have carefully considered these sew
sral grounds, and have arrived at the
conclusion that a new trial should Dc
granted.
1t will not be necessary to state my
VieW OF the evidence adduced at the trial,
or that shown by the atidavlts to be
newly discoYered-perhaps IL would be
i. n. racxKr rfaf
70 be had-further than TO say bnat upon
consideration of all three of the grounds
for the motion l think the ends OF justice
and the right to a fair trial are best sub
served by granting the motion.
The third ground, however, calls Tor
some remarks.
The Supreme Court of this State has in
many cases reversed judgments of con-
viction because the District Attorney eX-
ceeded his duty by taking unfair ad-
vantage of the accused in his address TO
the jury, and in other cases has often ad-
monished public prosecutors OF their
duty in this regard.
The following are some Of the cases
which may be prohtabIy consulted upon
what constitutes q fair trial in respect TO
this duty upon the part of prosecuting
officers: People VS.. Mitchell, 6Z Cal. Al;
People VS.. Lee Chuck, 70 Cal. 329; People
VS.. Bowers, 70 Cal. 4I5; People VS.. All
Len, 81 Cal. %; People VS.. Devine, 80
Cal 237; People VS.. " ellis, 100 Cal. 4oS;
People VS.. Mullings. s. Cal. l3S.
An examination OF these cases, IN
everyone Of which the judgment was re-
versed, on account of the unfair conduct
of the District Attorney, will show that
the conduct complained of was less OBJ
jectionable, certainly not more objection
able, than that complained OF in this case.
In his opening address to the jury the
District A AttOFnoY said:
I'VE will show you that Black had been
living in Sacramento City Tor number
OF months. He was not engaged in any
particular business, IN fact ne had no
business while he was here except to live
in the vicinity Of u street with q woman
by the name Of Nellie Mace during that
period of time"
And again: ain fact, Black had va
rious aliases, not only by the name OF
Black, but other different nanes.n
And again BLACK and Edwards re-
NAMED together III san Francisco, and
were finally arrested together down there
on charge similar to this, OF going in
store ana throwing pepper in a jewelers.
face and securing some property. They
were arrested. Edwards was convicted
and sent to State Prison. Black escaped
And again: I'VE will further show
that Black remained away from Sacra-
mento some time until he got through
his trouble in San Francisco; that he
came again TO Sacramento, ! think, the
following fair week. We viii show TO
YOU officer Talbot had known MIN quite
awhile and had met him IL his official
capacity, as he meets any other Of these
men who hang around town, especially
that portion Of the town. He was known
at that time among the officers as what
we call 'maques.' He was living with
woman, without any visible means of
support. Black told Tai
bot about his troubles IN San Francisco,
and pulled out OF his pocket slips Of
papers that he had taken from newspa-
pers OF this diamond robbery that took
place IN San Francisco. and told him that
Edwards had been sent up and that he
got out of It."
And again: "Gentlemen of the jury.
after we have shown you these facts, and
shown you the character OF this defend
ant, the business he has been engaged IN
and we will show to you, as l said, that
his Identification is complete by these
two witnesses who saw him upon that
OCCASION
The District Attorney knew that he
could not be permitted TO prove any OF
these charges against the defendant.
Manifestly, therefore, il was in violation
of the defendants rights to make the
statements TO the jury. 1t Is loo plain
for dispute that they were well calculated
10 inflame the minds of the jurors with
prejudice against the defendant, which
no charge of the court upon the subject OF
their duty to disregard such statements
would be potent enough to entirely re-
move or overcome.
The District Attorney, in another very
important matter, invaded the defend
ants right. In his opening address he
plainly brought before the jury the
question of the defendant being a Wit
ness in his own behalf. and, in effect, iu
vited or. 1t may be said. challenged him
to take the witness stand, and IN advance
warned the jury TO De on their guard
against his "shrewdness."
He spoke of defendant as "a man, as
you viii observe, if placed on the witness
stand-you Will observe from his conduct
in the courtroom-a man of q good deal Of
Shrewdness.n
In MS closing address to the jury the
District Attorney more than once, in a
manner of language so pointed and di-
rect Gs TO leave no room for misunder-
standing, called the attention of the jury
to the fact that defendant did not avail
himself of his right TO be witness, and
to explain or deny certain incuipatory
facts claimed TO have been proved against
him. Twice the Court was compelled to
interfere and stop such invasions of the