The herald. [microfilm reel] (Los Angeles [Calif.]) 1893-1900, 1895-04-14
THE WHEELER ACCUSATION
Major Donnell is Given a Point by
Judge Van Dyke
The District Attorney Has Discretion airy
Powcrs-The Petitioner lust Now
Prove His Allegations

When the summary proceedings insti-
tutsd by Dalton Wheeler against District
Attorney Donnell were called up in de-
partment four of the superior court yes
terday morning Messrs. NJ. T. Allen and
Ben Goodrich. counsel for Major Don
nell stated that IN their judgment the
allegations in petitioner accusation
were insufficient to demand an answer.
They had filed u demurrer to the com
plant, but their client positively refused
to avail himself Of technical grounds in
the premises. and preferred that the
whole matter should be heard from begin
ming To end by the court. Under the cir
cumstinccs the attorneys begged leave to
withdraw this demurrer and to file in
stead an answer consisting Of general
denial. The motion was granted. Messrs.
Chapman and kcndrick, the lawyers who
appear for Dalton WHEELER. were not ready
to proceed at once. A continuance was
granted until the afternoon to give petit
TONER an opportunity to study Major Don
ncll's answer and procure the attendance
OF material wtesses.
At 80 Wheeler's attorneys filed de-
murrcr to Ma jor Donneli's answer, which
Gent t. constitute Il defense.
Briefly stated, the district attorney in
his answer alleged that his reason for de-
nying complaint for criminal libel
against Colonel Otis was becau the re-
suit of his investigations into the matter
had not shown concluSively that
public offense had been committed: that
the issuance of a complaint would have
| been unwarranted, and that there was no
| probable cause. even if warrant had
been issued and an examination held. to
anticipate conviction. The district
| attorney further alleged that he had acted
| in the premises upon his best judgment.
in support of their demurrer Mr.. Wheel
| er's attorneys argued that the duties of a
| district attorney are not OF Judicial ma
| ture, but purely ministerial. and that he
! bad no discretion in the matter OF issuing
| or refusing to issue % COMPLAINT. SO the
| lawyers maintained that MAJOR Donntll
| had been derelct in his duty when he re-
fused to fake the preliminary steps lead
! ing to the arrest Of Colone. Otis OF the
Times. and declined to comply with Dal-
| ton Wheeler s demand.
Respondents attorneys, on the other
| hand denied that there was no discre
| tionary power vested iii the district at
! torncv. When Dalton Wheeler mad sub
mitted the articles com plained of to the
! official. the latter Lad thoroughly exam
| ined the legal aspect of the case, and
! having honestly concluded that no puDnc
offense had been committed by its publ
cation. and that its contents were true, it
was perfectly proper for him, in his judg..
ment, to decline to set the machinery OF
the law in motion by refusing to draw up
a complaint charging the editor OF the
| Times with criminal libel upon one
Josephine Holmes.
Judge Van dyke in overrulng the petit
| TONERS demurrer to respondents answer
briefly touched upon the duties of dis
trict attorney and the case in point. He
| held that the district attorney certainly
had discretionary powers, and that. If
/ after an honest and faif investigation OF
a case submitted to him. he came to the
| conc usIon that it was not to the hest inter
ests of the people to draw up a complaint,
because no public offense had been com
mitted, or there was no proof to that
effect he was justified in refusing to issue
! the document. If there had been no ale
! cations made in petitioners accusation
that the district attorney had corruptly
refused to issue a complaint. this would
virtually have settled the proceedings
| right there; but under a charge of wilful
wrong doing, Dalton Wheeler is now put
upon the proof of his allegations. The
case was therefore continued by Judge
Van Dyke until Monday week at 10
o'clock.
The same Judge has the accusation of
lawyer named Young now under advise
ment. the contents OF which have been
heretofore published in these columns.