The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1894-11-24
IN A CRIMINAL INVESTIGATION.


the Thirty-ffth Assembly District, who
are charged with iampering with ballots.
1t is proposed to contest the validity of
the proceedings taken against these men,
on the ground that they are protected by
the purity of election laws.
There was huge crowd assembled in
the courtroom, well-known faces of dis
tinguished politicians being noted here
and there. gazing with interest upon the
scene. All the four accused were on
hand, Buckley, Butler and Conroy being
already in custody. and the precinct in.
spector, Martinez, suTrendering himself
shortly before the opening of court. Buck
ley, Butler and Conroy were represented
by Attorney }. j. Guilfoyle, while Marti-
net was legally advised by Colonel" j.
O'Byrne. Attorneys Nougues and Andy
Clunie were assisted by 7. Y. Gator in
conducting the pr osecuti0n. All four de-
PENDANTS are apparently very young men,
Martinez being slightly distinguished from
the others by the superior quality of his
TAiment.
The first witness to take the stand when
his Honor gave the signal to proceed was
Registrar Evans. He told of having re-
ceived at his Office on November S, at half
past O'Clock, the sealed envelope con-
tanning the tally-sheet of the Tenth Pre-
clnct, Thirty-fif til Assembly District. The
envelope was produced and showed to
Registrar Evans, who at once identified ii.
He also remembered that the envelope was
originally received by Max Warshauer,
one of his deputies. The envelope was
sent on TO the Election Commissioners,
and after being opened was resealeu anu
put in the condition 1t now presented.
Il ask that the envelope De opened" de-
maded Cluuie.
Guilfoyle. however, objected to this. say
ing that the envelope could not be opened
except for the purposes of a recount This
bad been decided ny the Supreme Court in
the case OF eX-Registrar Brown.
Judge Wallace, however, thought differ
emily, and ordered the envelope to be
opened. But as the seal was being broken
a further objection came from O'Byrne,
who quoted the same Supreme Court de-
cision.
Clunie was heard to say that the Brown
case referred TO ballots only.
Judge Wallace looked rather annoyed.
I've ruled once on The point" he said.
go on and open the envelope"
O'ByTne smiled his usual smile and re-
Quested the favor CT an exception TO the
courts ruling. He was about 10 enJer ID
& long explanation of his reasons for
making the request, but toe Judge cut him
SNORT ny SdYluS ludt " DkIH0 COulQ nave
his exception and the court didn't want TO
hear any reasons.
Registrar Evans was then permitted to
travel through the history of this envelope
from the time 1t reached his hands until
after the Election Commissioners ad done
with 1t. lie was about to tell all about the
disclosures it brought about before the
Election Commissioners when he was in
terrupted by a warning gesture from Gull
foyle. Then came preliminary warning
of what was to follow.
I'VE object" said Guilfoyle, ITO the use
here OF testimony or facts brought out be-
fore the Election Commissioners. We
propose TO contend that as that inquiry
was q lawful Investigation. under the law
facts brought out there cannot be used in
q criminal prosecution"
Judge Wallace overrued the objection,
however, and Evans proceeded. Certain
scratches after the name of Dolan, who,
with Cal Ewing and Higgins, was can
didate for the Office of Assem- blyman from
the Thirty-ffth District, were shown to
Evans, and he recognized these scratches
rs the same erasures he had seen when
cross-examinatOn, he said: ''Tve made
scratches like these myself when L was an
election officer two years ago."
Clunie jumped up. Dye me to say
that you ever made scratches like these?"
he asked.
No." was the answer. 81 simply made
one or two erasures when l found [ had
made mistake"
Mayor Ellert was the next witness. He
was asked TO state the circumstances
nnder which be first saw the talIy-sheet.
GuIltoyle here interpOsed the same obiec-
tio1 introduced awhile ago, put il was
overruled. Then he took the opposite
tack. claiming that the Election Commits
sioners' investigation was an unlawful
one, ana that the evidence obtained from
Inc defendants had been obtained under
duress. Judge Wallace, however, over
ruled this objection also.
The Mayor then stated that he saw the
tally-sheet at meeting of the Election
Commissioners. At the request of A. ].
CluDie he read the commissioners affidavit
attached 10 tne taliy,sneet after the CON-
mlssionerS had agreed hat the totals should
be corrected. The affidavit stated that
the commissioners made the correction
after becoming satisfied that the totals as
given in by the pTecl ct officers "had been
1raudulently changed in Donlon's vote from
101 to 90, and Higgins from 81 to 1876"
This business did not suit OByrne, how
ever, who made a vigorous and eloquent
objection, and Judge Wallace decided that
the affidavit could only be ia ken as quoting
the opinion of the Election Commissioners,
but as evidence of fraud it could not be
considered. All such reference was or
dered TO be stricken from the record.
Then followed further explanation from
the Mayor, of how the commissioners had
discovered that the returns had been tam
pered with, an explanation which occa-
stoned another volcanic eruption on the
part of O'Byrne and Guiifogle. They con-
TENDED that under section 80 of of purity
of election law the evidence adduced at
an official investigation could not be used
in a criminal prosecution. After Gull
foyle bad expounded the law on this sub
lect in determined tones the suave colonel
followed him with burst of eloQuence.
Andy ClunIe argued the other way. he
had to say that the provision referred to
excepted the provision OF the code under
which the complaint had been drawn.
Moreover, he contended that the evidence
was barred only when it had been OBJ
tanned from unwilling witnesses. Turn
Ing to Mayor Ebert. who waited patiently
In the witness chair, Clune asked MIN
whether the defendants had not Testified
willingly before the Election Commission
ers. Mayor Ebert replied In the af1lrma-
tive.
A supplementary argument against
O'Byrne's objection was made by L. V.
Gator. The counsel argued that section
90. under which The complaint had been