The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1896-04-05

The petition of County Attolhey
Whittemore for a writ of mandate 10
compel Justice Harvey to permit the
petitioner to take charge OF the pros
ecution in the case of l.. c. DAVIS
charged with perjury. came up for
hearing before Judge Young yesterday
forenoon. The public is already TAMIL
lar with the circumstances OF the case
the petition for the writ of mandate
and the answer having been aTeaoy
published in the Herald.
Shortly. Davis was charged with per-
Jury. alleged by Joseph Il. MOTIFS "
have been committed while DAVIS was
witness for the prosecution IN the
bribery cases against Herman BAN
berger and Joseph R. Morris. The
county attorney. when the case against
Davis came up before Justice Harvey,
refused to prosecute, declaring there
was nothing in the charges and asked
that Davis be dismissed. Justice Har-
vev refused to dismiss and appointed
Judge Dey to prosecute. Then the
county attorney changed his NINA anu
demanded that he be allowed TO take
charge of the prosecution. rms JUS
tice Harvey refused to do, for the rea-
son that Whittemore, by his conduct,
prosecutor in the case and that the
court had already appointed another
attorney to prosecute. The justice hao
no objection to Mr.. Whittemore assist
ing in the prosecution, but Declined 10
give him full charge of it. Whittemore
then made application to the district
court for a writ of mandate against
Justice Harvey.
County Attorney Whittemore opened
the proceedings before Judge Young by
reading the petition, the answer and
the record of proceedings before JUS
tice Harvey. and then proceeded to
argue that the justice should be guided
by the county attorney and should not
have issued the warrant WITHOUT his
consent The county attorneys duty
was as much to protect the public from
unjust prosecutions and prosecutions
from personal animus as to prosecute
guilty people.
The act of the legislature, Mr.. Whit
temore contended, placed it entirely
within the discretion of the county at
torney who should be prosecuted and
who should not Promiscuous arrests
and prosecutions put great expense on
the state worked an injustice to people
and seldom resulted in convictions. 1t
was necessary to have some one to
guard the state treasury from those
who would squander the funds by Ill
advised prosecutions and that same
guardian was the county attorney.
Mr. Whittemore complained that he
had been ousted from his Office; he, the
duly elected county attorney, had been
ousted by a justice of the peace, not
only ousted but his successor had been
appointed and had qualified.
JUDGE DEYS CONTENTION.
Judge Dey, on behalf of the defend
ant, argued that mandamus was not
the proper remedy; also that there was
no law requiring the justice of the
peace to consult the county attorney
before issuing warrants of arrest
Counsel also held that the county at
torney had disqualified himself as
prosecutor and placed himself in the
position of a witness for the defense.
He said he was personally cognizant of
the charge made, knew there was no
foundation for it and that it ought to
be dismissed and very properly in the
first instance refused to prosecute, but
later comes along and says, notwith-
standing that he is personally cogniz-
ant with the facts in the case and
holding the views he says he does, that
1t is his duty to prosecute. A judge
wouldn't sit in case in which he was
PRESUMABLY CO&ulHdul OI the IdClS- CdH
the county attorney have a greater
privilege, asked counsel.
Counsel then went on to say that
Whittemore had told the complaining
witness to make his complaint before
the grand jury, which was eminently
proper, but when the complaining wit
ness went before that body Mr.. Whit
temore induced the grand jury not
to take up the investigation by stating
to them that Davis wanted a public
preliminary hearing and the matter
was already in the hands of the justice
Counsel couldn't understand the county
attorneys double position, but was of
the opinion that instead of doing his
duty he was Sinking it. Counsel
thought that Mr.. Whittemore was in
every was disqualified from taking
charge of the prosecution, and it would
be wrong to permit him to do so.
Mr.. Whittemore briefly replied refer
ring to the enlarged powers conferred
on the county attorney under the state
constitution. He asked the judge TO
decree that all criminal prosecutions in
future be started with the advice and
sanction of the county attorney only.
He thought it was very wrong to arrest
Davis, who came here as a witness for
the state, because it would have the
effect of preventing other witnesses
from coming here to testify unless thew
were guaranteed beforehand that the
person they came to testify against
would be convicted
Judge Young took the matter under
advisement.
Alleged Breach of Trust.