The herald., 1896-12-25
M'CARTY GOES UP
For Ten Years When the Burglar No
Longer Has a Chance to "Burgle."


Jack McCarty, convicted of being CON-
cerned in the attempt to burglarize the
First National bank, Is to spend the
next ten years Of his life in the classic
retreat known as the state penitentiaTy
at San Quentin. That is If his appeal 20
the supreme court is not considered IA
vorably.
Yesterday Frank Davis, Esq. made a
very lucid and powerful presentation of
the facts in support of the motion for
new trial. He maintained that Nc
Carty was justly entitled tositon three
distinct grounds: First, on the ground
of newly discovered evidence. Tie affi-
davit that had been filed, which, by stip-
ulation, was filed with all the sig
nificance as if affiant testified himself.
showed that on the 18th Of June the de-
fendant was in a place making it
utterly impossible for him to have COM
mitted the crime with which he was
charged. The witnesses for the defense,
who came from San Diego, testified
as to a period of time between certain
dates, but not as to the exact date-the
18th Mr.. Davis argued that there be-
ing such ambiguity the jury dis
regarded it. The testimony of Michael
Kennedy, however, establishes def-
nitely the whereabouts Of defendant on
the 18th, he having been positively seen
on that day on the train between San
Diego and this city. Such testimony
being altogether distinct and new,
counsel argued that it was free from
the criticism of cumulative evidence.
In the second place, Mr.. Davis con-
tended that a new trial should be granted
for the misconduct of juror He read
to the court an affidavit of Clerk Logan,
of department one, showing conclusively
that A. B Caldwell, foreman of the
jury in the McCarty trial. had filed the
exactly similar position on the jury when
the defendant was on trial for an as
sault with deadly weapon. Consul also
read an affidavit of Foreman Caldwell in
which he stated that he had no remem-
brance Of having been on the jury when
McCarty was brought to trial for as
sault. Counsel urged that, while not de-
string to criticise or dwell unduly upon
the extraordinary fact that juror had
sat and passed upon the liberty of a
man and then forgotten all about it,
it did seem an anomalous state of af-
fairs But point of law was involved.
A certain number of challenges are as
sured to defendant as a safeguard and
| if he exhausts these he has exhausted
| all efforts open to him. By this action
of the juror defendant had, whether in
nocently or otherwise, deprived the de-
fendant of a challenge and in so doing
had taken from him one of the safe
| guards assured by law.
The third contention of counsel was
based on the evidence not justifying the
verdict, the verdict being contrary tC
| it. He drew the courts attention to
the fact that the testimony of Fred L.
Jones was the only direct testimony put
forward by the prosecution. Accepting
it in all its breadth it consisted of a
recital of certain acts of conspiracy and
participation of breaking in, and tbs
| time. Jones never uttered one syllable
which tended to show that the defendant
| aided in the construction of the tunnel
The act of digging was adverted to only
| once and that was by Rigby, the board
ing house keeper, who said he noticed
the discolored state of defendants cloth
| ing. Under such circumstances the
crime. could only be defined as burglary
in the first degree only by the circum.
stance of time. For conspiring to burg
larize the bank defendant could not be
found guilty in the first degree if the
act was committed at time that woule
put 1t in the second degree. 1t matterec
not what the conspiracy was, counse
argued. the undisputed testimony O.
Jones was that the burglary was com
mitted In the day time. In such case thu
jury could only find the defendant guilty