The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1895-03-22
THE SUPREME COURT AFFIRMs
THE CONVICTION AGAINST
HIM.
UNSEEMLY HASTE WAS HAD
JUDGE LEVY CENsURED FOR HURRY
ING Him TO TRIAL So
RAPIDLY.

IueIe Is no more 1Or w lIl1am EreQerlckS
to expect from the courts of this State, for
the Supreme Court has just decided, prac-
tlcalIy, that he must hang for the murder
of w. A. Herrick, cashier of the Branch
Bank of the San Francisco Savings Union.
The crime was committed on March %,
1894. Fredericks entered the bank, on the
corner of Fell and Market streets, and de
manded 5000 from Herrick, the cashier.
Herrick refused to give the money and
Fredericks shot him dead. He was cap
tured after a long chase and was impris-
oned. On March % his preliminary ex-
animation was held and on March 20 an
information charging him with murder
was filed. On March 80 he was arraigned
before Judge Levy, and he was then given
until April 2 to plead. On April he re-
fused to plead and asked for more time.
but plea of not guilty was entered for
HIM by order of the court and his trial was
set for April g. AT each step the defend
ant, through his attorney, Mr. Colwell
prayed for time, but in no instance Was he
allowed any more than the law gave him.
He was speedily found guilty and was SEN
fenced to death. This judgment has been
affirmed.
Commenting upon the haste with which
his case was pushed through, the Supreme
Court says:
While the period of time-to wit three
days-intervening between the arraignment
and commencement of the trial OF the defend
ant might be enough time in some European
countries TO bring to trial, convict and decapi-
tate half dozen criminals, yet in this country
where persons charged with crime have more
rights under the law, we think this defendant
might well have been allowed ten, twenty or
even thirty days TO prepare Tor his defense. In
view OF the enormity of the charge against
him, in view OF the public clamor that was pur-
suing him, in view OF his own poverty and
trlendlessness, the State could well have az
forded to concede him such continuance. in
order that he might have full opportunity to
make his defense, however weak it may have
been when made. The State would have lost
nothing by such course, and justice would
have been done just the same. While the State
should administer justice TO lawbreakers with
no laggard hand, yet at the instance of public
clamor or other causes, it is beneath its dig
nifty 10 act with unseemly haste. We conclude
not think the mere fact of fixing the day of the
trial at q date so soon after the arraignment
a nd plea ipso facto furnishes sufficient ground
Tor g reversal OF the Judgment.
Continuing on to the points of law in
volved in the case, the opinion proceeds:
1t is claimed that the information is fatally
detective in its statement OF facts. While 1t
alleges the offense TO have been committed in
the city and county OF San Francisco, it is in
sisted that the Superior Court has no jurisdic
city and county, and for that reason no jnris-
diction is shown in the court by the informa-
ton TO try the case, there being no allegation
contained therein denying the commission OF
the offense upon such excepted territory. This
question of jurisdiction was directly presented
Tor consideration in the very recent case of
the People VS.. Collins, and it was there held
that it could not be raised by demurrer or
motion in arrest of judgment, but was a matter
OF defense.
Defendants counsel moved for change of
venue, and in support OF his motion read The
affidavit of defendant and also his own. They
are based upon the grounds that defendant
could not have a fair and impartial trial in the
city and county OF san Francisco by reason of
the bias and prejudice of the-peoplc against
him, The motion was denied by the trial
conrt. The afhdavits present strong prina
facie case IN support or the motion, and were
contradicted in no material point. No counter
athdavlts were introduced, and the statement
OF the District Attorney under oath in opposi-
ton to the granting of the motion related
almost entirely to matters GU tsde of the cues
ton of the condition OF the public mind in the
locality where the defendant was to be tried
If the matter had rested at this stage of the
proceedings, we would feel in duty bound to
grant new trial OF this case upon the show
Ing made by the defendant, and would be fully
supported in such conclusion by the People VS..
Yoakum and People VS.. Goldenson. But sub
sequently, upon the 9TH day of April, and
during the Impeachment Of the jury, defend
ants counsel was given a second opportunity
10 urge his motion for change of venue, and
the hearing thereof was set for April 9. At
time counsel 1alleQ 10 call his motion,
and no action whatever was taken upon it by
the trial court. We deem counsels conduct
an abandonment and waiver OF the whole
question, and he cannot now insist upon a new
trial upon ruling of the trial court, when he
had full opportunity to secure the results de-
sired at the hands of that court for we must
assume that his motion when renewed would
have been granted, II the facts and the law de-
mnnded 1t. The facts disclosed are similar to
the facts in the case OF People VS.. Plummer. In
that case during the impeachment of the jury
Cfl for 1fn AAa1
new their motion for a change OF venue which
had been denied. In the present case counsel
In effect does the same thing, for after the mo-
ton is set Tor hearing he fails to press or even
insist OF ask that the court pass upon it. =
This court is only allowed to review
an order denying q challenge to juror upon
the ground OF actual bias when the evidence
upon the examination OF the juroris so opposed
to the decision of the trial court that the cues
ton becomes one of law, for it is only in points
OF law that this court has appellate jurisdiction
in criminal cases. In this case the eXamina-
ton OF some of the yenire, who were subse-
quently unsuccessfully challenged upon the
ground OF actual bias by the defendant, dis
closed state of facts which might we'll have
justified the trial court in excluding them from
the jury-box. But the evidence OF these jurors,
taken upon their voir dire, is not at all con-
elusive that they were disqualified from acting
in the case. When the matter was submitted
to the court for decision upon the evidence
taken 1t can at least be said that the question
was an open one as to their disqualification.
The evidence OF each juror was contradictory
in itself; it was subject to more than one con-
struction. A finding either way by the court
on the challenges would have support in the
evidence, and under such circumstance the
trial court is the arbiter of the question. For
under such conditions the question presented
to this court by the appeal is one of fact, and
our power to hear and determine is limited to
appeals upon questions of law alone. For these
reasons the counsePs contentious in this re-
gard furnish no material to justify retrial of
this case. Neither do we find any merit in the
exception to the order of the court disallowing
his challenge to the panel
The trial court committed no error in admit
ting evidence as to the pursuit and capture of
the defendant Immediately after the commits
sion OF the homicide, and the prosecution had
the right to prove the facts pertaining thereto,
if it deemed that course advisable, rather than
take an admission of them from defendant
We do not discover any error in admitting de-
fendant's statements and confessions II APP
pears that they were freely and voluntarily
made.
1t is claimed that the verdict is contrary to
the evidence. Defendants counsel declares
that the evidence shows conclusively that it
was physical impossibility for defendant to
have fired the shot which killed the deceased
In answer to this contention it is sufficient 10
say that the witness Melvin testified in direct
terms that defendant fired the fatal shot and
the defendant himself admits the fact. Under
these circumstances we will not disturb the
verdict upon the ground of the ineficiency of
the evidence upon the point as to who fred the