The herald. [microfilm reel] (Los Angeles [Calif.]) 1893-1900, 1896-09-22
THE MAYN[ CASE |NCOURT
On a Motion for a New
The PROPOSITION IS Bad LAW
The Court Holds It Has No
Jurisdiction
THE AFFIDAVtTS OF NOAVAIL
AiTangIed Up Condition of the Legal
- Points Involved
THE AFFIDAV(TS OF NOAVAIL
When a Defendant May Be Innocent and YeI
Suffer Punishment
Judge Smith Holds That the Case is
in the Supreme Court. and No In
s ferior Court Can Afford Re-
lief at This Time.

Some one profoundly remarked that
law has been reduced to a huge bunch
of counudrums.
To the lay mind not keen or sharp
edged enough to follow all the quips
and quirks that originate in the devious
convolutions of gray matter that go to
make up the average lawyers brain
this seems true.
Given as a proposition: A man con-
victed Of hideous crime and having
taken an appeal from the judgment
and the order denying the new trial to
the supreme court he finds new evil
dence. With this additional testimony,
obtained at great expense of toll and
money, in hand, he feels secure, for it
shows forth his innocence Of the charge
upon which he was tried an convicted.
But he's all wrong. The new and
valuable evidence gives him no stand
ing in court, and the witnesses who are
ready to come forward and absolutely
prove that he was convicted on per-
jured testimony had better keep their
breath to cool their porridge." The law
holds that in such case the court of
trial has no jurisdiction; it's hands are
tied, as the case is in the supreme court.
All that the poor devil can do is to push
his original case on appeal In
the supreme court, and take his chances
there, while in his inside pocket is stow
ed away the evidence that would set
him free could he but use it. But he
can't.
He can't, and that's the funny part
of it, and it was so decided last night
in department one of the superior court,
when the thrice celebrated Mayne case
again made it's APPEARANCE in court.
Attorneys D. X. Trask, W. H. Shinn
and j. l.. Copeland of San Diego APP
peared for Clifton e. Mayne, convicted
of rape upon the person of Elsie Ship
ton, and Deputy District Attorney Nc
Comas and Chief Deputy Holton ap-
peared for the people.
THOSE STARTLING AFFIDAVITS.
The case was again in court at a
night session held by Judge Smith fol-
the especial purpose, on motion, oil
| rather, perhaps. petition. to set aside
the order denying the motion denying
the order denying a motion for new
trial.
This motion was based on about twen-
ty-five affidavits of the most striking
character. Some have been made by
witnesses at Mayne's trial, and they
confess frankly that they then commit
leu JULIUS uIc Ny SooU Siii
tian women-hysterical women, they
might probably be termed by the prose-
cution-setting forth things abso-
lutely the reverse of that which was
shown at the trial of Mayne.
Mayne's counsel We're estopped from
making this motion by Mr.. Holton, who
said they claimed the court was with
out jurisdiction, and Mr.. McComas then
moved to strike from the files the affida-
Wits and the motion, if this was one, on
the ground that there was a motion
made and overrued. The defendant
then took an appeal, and the case being
now in the supreme court, the trial
court had no jurisdiction.
Attorney Trask then proceeded to ar
que that the court had jurisdiction of
the case; that it never does lose juris-
diction to do justice so long as no bill
of exceptions has been settled. Mr..
Trask first read the opinion of Chief
Justice Maxwell of Nebraska in the case
of Snow VS.. Vandevere, and then an
opinion in the Kansas case of the state
VS.. Calhoun. He contended that if a
defendant discovers new evidnece that
goes to prove the falsity of every es-
sential particular upon which his con-
viction rested--evdence that required
toll, correspondence and time-it SEEM
ed as if some opportunity must be af-
forded him to use it.
at may be said" remarked Mr. Trask,
that he can appeal to the governor for
executive clemency, but justice cannot
lie in that direction. People may say
that the defendant was released on ac-
count of excessive sentence, sympathy
or anything else. A defendant has the
right to trial by his peers. so that he
may go forth as one that has been tried
and eXonerated of any charge
"On the other hand, the supreme court
In, bo "a lyon nc o,It I,
can have no cognizance of the later evil
dence discovered and can only pass upon
that before them. 1t is hard to punish a
man for not bringing evidence at the
time of his trial that he would have been
glad to bring if he could have done so.
1t was sought to obtain continuances in
order to obtain evidence from Iowa and
elsewhere going to show that Elsie was
born in 1881. and was therefore over the
statutory age at the time of the alleged
offence but without avail. To urge that
the case is in the supreme court is to
defraud the defendant of his right to
make new testimony manifesto There Is
mo way to get these matters into the rec
ord, and 1 don't believe courts are fol-
the purpose of working injustice"
. Mr.. Trask concluded his argument by
saying that when the court had viewed
the matter literally before the bill of
court had never held it error
'+a, p. CAN NOT AFFORD RELIEF.
Mr.. Copeland began his argument, but
was interrupted by the court. who said
that the proceedings were most extraor-
binary and unless something additional
and better than had been offered could
be put forward he did not see that any
court could afford relief. 1.-THE ques
ton before u.s. said Judge Smith, sis
this: Is the case pending in another
court. and any order l might make
would it not be nugatory and void?"
Mr.. Copeland failed to cast any addi-
tional light on the situation and then
Attorney Shnn had whack at the hard
legal nut. He claimed that the penal
code, where it speaks OF taking an APP
peal" referred merely to the initial
steps, and the lower court still had juris-
diction of the subject matter and per-
son OF the defendant until the appeal
was perfected and the bill of exceptions
settled
Mr. McComas knocked the bottom out
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