The San Francisco call., 1896-02-13
Compelled to Return a Verdict
Against Their Con-
victionS.
THEY ASK A NEW HEARING.
II All Comes Out of a Case in Which
Money-Lender Asa Fisk Is
the Plaintiff.

signatures of twelve irate jurymen who
declare their sovereignty. They are chat
ing over the instructions of Judge Dain-
gerfield which compelled them to bring in
verdict entirely disacco-dant with their
ideas in the case of Asa Fisk against John
Mallon.
The court, so they state in their affidavit
herewith given, was entirely at variance
with their ideas of the case, and it was
only the threat OF being placed in con-
tempt that made them relinquish their
rights as American citizens in the jury
box, to give a verdict according to their
own idea.
THE CALL has already published the
particulars of the case which has brought
about this judicial scandal. Fisk loaned
$500 in cash to John Hill, whose note was
Endorsed by Mallon. By devious means
Mallon was made to pay $1,000 to Fisk as
interest, and finally was worked into in
dorsing note as a renewal for 500, which
subsequently turned out to be a note for
ten times that amount.
But these details have already been pub
lished, as they have been fully stated to
the jury.
The affidavit in the case, however, is a
new thing in the Jurisprudence of this
country. 1t reads as follows:
In the Superior Court City and County of
San Francisco.
ASA FISK
JOHN MALLoN>
CITY AND 6HcoG coGSqr GaaGEGRa Of saS GFRhaiscrsco
Simon Furth, T. r. Horton, S. Fischer, Will
liam Mocker, Piatt Conklin, Joseph n. Noun
nan. Albert Folsom Henry KIindt, Lawrence
W. Coe, o. P. James, Peter Ringen, ]. A EN-
erson, being separately and individually
sworn deposes and says: That atfaut was
sworn as one of the trial jurors TO try the case
atoreentitled in the Superior Court for said
city and County of San Francisco, Department
: thereon, snd that the trial occupied the 30th
day OF January and the Sd and 4th days of
February, 1896; that the evidence on behalf
of plaintiff and defendant as presented and
heard on said trial, satisfied the mind of your
affant that the defendant did not know or
understand that he was assuming any La
biltty by placing his name paper that
was introduced in evidence, viz: the paper,
plaintiffs exhibit A being the alleged pro-
missory note dated August 8, 1886, for the
payment OF the sum OF $500 principal with in
terest thereon at the rate Of 5 per cent per
month, and If not paid IN advance to be COM
pounded monthly, and the same to bear the
like rate of interest OF per cent per month,
or in writing his name to the alleged renewal
indoTsed on the back of said paper exhibit A.
ana your affiant was further satisfied that the
said exhibit as submitted TO the said jury
trying the above-entitled case was and is an
unlawful contract and against good morals;
that your affiant and is further satisfied
that the plaintiff in the aforeentitied case took
an undue and unwarranted advantage of the de-
fendent both by fraud and misrepresentation;
that your atfiapt wss and is convinced and
satisfied that the plaintiff was not entitled
TO recover in said afore-enutled action, but
that the verdict OF your affiant as he desired TO
render il was for the defendant and for his
costs, and your affiant verify believes that the
defendant was and is entitled to Judgment
against plaintiff herein. That your afiiant
wished and desired TO make and render his
verdict, and would have done so, nevertheless
the instruction of the court to bring in q yer-
dict for plaintiff, were it not that affiant feared
that such action might have been construed
by the court as an act OF disrespect and that
affiant would be called upon to answer why he
should not be punished for contempt of court;
that in truth and in fact the verdict as now
entered and filed was not the verdict of your
affiant according to his view of the testimony
and his construction of the instrument upon
which plaintiff claims to recover.
That, on the contrary, the verdicto this af-
liant was and is under the evidence that ~
lind III favor of the defendant and for his
costs" That the verdie; now entered and
lied is such verdict as affiant was forced to
give by reason OF the positive demand and in
strue;ion OF the court, and was and is not the
verdict of this affiant under the evidence of
the witnesses who testified on the trial of the
case, and this affiant believes and is convinced
that the verdict now entered and filed should
be set aside and q verdict entered in favor of
defendant and for his costs.
p. Conklin (foremanl, S. Fischer, o. P
James. Simon Furth, Henry Klindt, j. A. EN-
erson, Thomas r. Horton, Peter Ringen. viii
liam Moeker, A. Folsom, George F. Nounnan,
T. w. Coe.
'I cannot understand why Judge Dain-
gertieid took the stand he did in this case"
said Eugene Deuprey when seen about the
Flsk-Mallon matter yesterday. HE is
ordinarily, and is acknowledged TO be,
fair and unbiased representative of Justice,
and, besides, our personal relations are of
the friendliest nature. argued the case
in behalf of my client, MalIon, until the
jury retired with cast-iron instructions to
find a verdict against US. Then came
brief interval, at the conclusion of which
the jury sent word to Judge Daingerfeld
that they would like 10 know whether or
not they had to abide by the instructions
OF the court or be allowed to construe the
facts pre- sented as they found them to be,
Knowing of this, l again demonstrated
with the Judge, but to no avail. The only
satisfaction got was that Judge danger
held told me in plain terms that he thought
he was, perfectly justified to give the in
structlons he had given to the Jury. and
that he would not accept any verdict con-
trary 10 his ruling
Speaking further on the general aspect
OF the case Mr.. Deuprey said that the law.
as he understood it. allowed q Judge TO
instruct lurles to find a verdict for or
against defendant or plaintiff only in cases
where there was one-sided evidence, with
out any contradictory facts from the op-
posltlon- In TINS particular case, however
there was abundant testimony for the de-
fendant, who took the witness-stand him
self to give facts TO the jury, which. as the
affidavit signed by them shows, convinced
them that he was being falsely prosecuted.
so these rulings certainly cannot be ap-
piled.
Mr.. Mallon's attorney will, within the
limited time, file his application for new
trial with Judge Daingerfield.
The application will be accompanied by
a counter-complaint asking for $25 000
damages. These damages, Mailon claims,
we're sustained on account of the stoppace
of his credit by the various banks with
which he did business by the general dis
inclination OF his many business associates
to credit him after the facts of the Asa
Fisk case became known.
Should. however. Judge Dainger6eld re-
fuse 70 grant a rehearing of the case, in
spite of all the facts calling for such an
action, the whole matter will go to the Su-
preme Court on appeal.