The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1895-07-26

said Durrant was held to answer by the COM
uniting magistrate and thereupon was trans
ferred from the custody of the Chief of Police
to the custody of the Sheriff of this City and
officers having charge of said Durrant was any
report made to me of any attack upon, or
demonstration against the said Durrant. and at
no time since have been connected with this
case have l had the slightest fear OF any
popular outbreak OF hostilities or hostile
demonstration against the prisoner
al, in conclusion, am informed and believe,
and therefore allege that there are approx
mateIy 800 900 people in said City and County
of San Francisco, and over &c, 600 male citizens
therein, ana that from these 10000 male
citizens therein and taxpayers, Just, IN
and just, fair and impartial trial may be had
In this City and County"
Afidavits of Detectives Anthony. Sey-
mour, Silvey and Byron, Captain Doug
lass, Jailer Sattler, Police Judge Oonlan,
District Attorney Barnes and his assistant,
Edward Peixotto, were also read to show
made against the prisoner; also expressing
the belief that he could have fair and
impartial trial in this City. The affidavits
were then offered and placed on file.
'sThese are the aft davits, if your Honor
please" said the District Attorney, "upon
which we base resistance to the motion
made by the defendant for the change of
venue. / submit the motion upon these
affidavits and ask that it be denied"
1--WE submit the motion upon the part of
the defendant" said General Dickinson,
"upon the affidavits already presented"
The matter was at last in the hands of
the court, and as his Honor Strengthened
up in his chair all eyes were turned in his
direction. The prisoner gave one hasty
glance and then turned to look into the
face of his mother, who had arrived few
moments before and who occupied seat
at his side.
Il have given this matter good deal of
thought" began Judge Murphy, "since
the motion was presented. | have re-
fres he'd my memory as to the showing
that was made in the Goldenson case,
which was before me some years ago, and
l find that the showing in that case was
much stronger than in the case now before
the court. The question as to the propri-
ETY. of the ruling of the court in that case
was presented to the Supreme Court and
the Supreme Court sustained this court in
denying the motion for change of venue,
and no language that l could use is as
forcible as that of the Supreme Court,
which lays down the rule which must
govern trial courts in passing upon cases
of this kind
'In that case, the Goldenson case, the
facts were much stronger than they are in
this, yet it appeared in that case that most
of the infammatory articles which are
complained of appeared about the time of
the occurrence, and that is about the state
of facts here. Nearly all the articles of an
inhammatory character in this case ap-
peared in the month of April, or about
that time, so that, so far as the newspaper
comments are concerned, they are some
what similar as to time in the two cases.
'.The language of the Supreme Court in
the Goldenson case is as follows:
But while the facts stated in the affidavit on
behalf OF the defendant are admitted to be
true substantially, there are two sufficient
reasons why the order of the court below de-
nying the motion for change of venue should
not be disturbed: 1. Because the principal
occurrences upon which atlantis for defendant
based their belief that fair and impartial
trial could not be had transpired within few
days after the homicide, and the counter
aftidaylts filed by the prosecution tended to
show that the excitement which had been
aroused by the homicide had entirely subsidized,
and had not prevailed for three weeks prior to
the time of the application for change of
venue. We cannot say that, under the show
lngs made by the respective parties, the court
abused Its discretion in denying the motion:
Such applications are addressed to the sound
discretion of the court, and, where error is as
signed, clear case should be shown by the
record, or this court will not interfere. The
court below was then in better position to
weigh the statements of the parties and de-
termine the truth than this court is now.
"That," continued his Honor, ST under
stand was the rule laid down by the
Supreme Court, and that rule was fol-
lowed in the case of Fredericks. Now, l
say, most of the infammatory matter COM
planned of occurred about the time of the
transaction. 1t could be shown that there
are certain articles of the late date, which
/ consider to be i'll advised and improper
publications in view of the fact that this