The San Francisco call., 1897-03-04
more be regarded as error than would have

more be regarded as error than would have
| been the like employment of any ordinary
physical object in the courtroom.
Error is assigned for the courts refusal 10 give
certain instructions proposed by the aeiehse,
| in number thirty-six. Argument is aoaIesse,a
to but few of them. Those will be CONSIDERED.
The others not argued have not oeen over
| looked, but they either contain manlless el-
| T rs of law, or are so completely covered py
others given OF the courts own notion
| that 1t may with safety be eoncluoed Ina INT.
recognition that as TO them no error was CON-
miLted.
Technical Points of Law.
OF the proposed instructions, No. was re-
fused because substantially given In tne
charge OF the court. 1t was so given NO:
deals with the danger to be avoided and the
caution to be exercised in reaching conc!u-
SION upon circumstantial evidence. Upon
this subject also the jury was fully and fairy
| advised by the court.
The propositions of Law contained in the
| first portion OF No 10 were given by the court
with more elaboration and exactness than ap-
pear in the proposed instruction. 1t was not
error for the court to decline to give the last
| portion. 1t is quite true that the law never re-
Qu.res the sacr flee OF a victim. But the jury
| mad been carefully instructed as to their
| duties and had been repeat tedly told that un-
| less upon clear and cogent proof. satls1ylng
| their minds beyond a reasonable dou ot they
| believed defendant guilty, it was their duty
| to acquit him. 1t was not incumbent upon
| the court to instruct the jury, as matter OF
law, tndJ III is SAFER TO erI IN aCQulttlUS.
Proposed instructions 11-16. upon the sub
ject of alibi, were fully embraced In those
given by the court, as was also the law upon
| the matter of Identification. OF the remain
ing instructions the same may be said.
1t may here be noted that the appellant does
not make serious com plaint that any OF the
instructions actually given by the court were
erroneous in point OF law, but contends that
in some ins tances the propositions which he
sought to have laid before the jury were not
dequately presented. The jury, however,
was ably, carefully and elaborately instructed
and we can discern no just ground OF COM
plant in this regard.
A Fair and Impartial Trial.
The grounds for new trial presented by de-
fepdant have for the most part been covered
by what has been said. One of them, how
ever, still remains for consideration. This is
that the proceedings were so conducted as TO
deprive defendant of his constitutional rlght
to fair and impartial trial. Under this head
1t is claimed that by the repeated pub lea
tions in the newspapers OF San Francisco pup
lie feeling was unjustly aroused 10 bitter hos
tility against the defendant; that witnesses
who would otherwise have given valuable tes-
timony in his favor were intimidated that
either they refused to testify or in testifying
gave colorless or worthless evidence, and that
the jury itself, impeled by fear, yielded to the
pubic. ciamor and demand that the de-
| fendant should be convicted. Many huh
| dreds of pages of the Transcript are given over
| to a presentation of the newspaper articles
complained OF.
| of SO atrocious character that the comm un-
| ity was greatly aroused. The ghastly and SEN
sational features were seized upon Wi n avid
! ity by the newspapers, and daily paraded and
| exploited before their Mortified readers.
| When Durrant was arrested for the crime
| there was no reservation of judgment upon
| to hold him up to the public as the guilty
| man. During the trial of the case they wed
| with each other in sensational discoveries and
\ prophecies concerning new evidence and
| ct W m h.
| out the attitude which they originally as
sumed, and from first to last continued TO
| treat the defendant as the undonbted GRIM
| inal. All this the record presented by appel
| liant abundantly establishes.
Opinion of a Community.
| But, where a community is deeply stirred
| over the commission of an appalling crime
! and the pubic and the public prints are
out for Il, unless we must say that under such
| circumstances, as matter OF law, defendant
| cannot have the trial guaranteed him by
! the constitution, such showing does not
conclude the question. Under these circum-
| stances ali men do not forsake reason; some
| still preserve dispassionate Judgment. and
If it be made to appear that me defendant
was tried by jury of such, uniniuenced by
| aught save the evidence then in this regard
none of his rights have been violated. After
rigorous examination by prosecution and de-
| tense it appears that such jury was obtained
| without eXhausting more than three-tflhs OF
the defendants peremptory challenges. Each
| juror makes solemn affidavit that he did
| not at any time. during the trial OF the
| cause and while he was impaneed and sworn
| as juror read or hear read any OF the articles,
| statements or comments published in any
| of the newspapers concerning this case; that
| he at all times needed the admonition of the
| court, given at each adjournment thereof,
| and was al no time Influenced in any way,
| shape or manner by any extraneous matter
! whatever while juror, either by newspapers,
| conversation or pub. .ic sentiment-if any such
sentiment existed; that he received no i'm
cence outside OF the courtroom, but decided
the case, after deliberate on, solely according
| to the law and the evidence, to the best of his
ability and understanding, and not other
| wise.
| 1t cannot be said that there was any error in
refusing a new trial under such a showing.
Witnesses Not Intimidated.
| The claim that witnesses for the defense
| were intimidated and kept from testifying is
| not supported. 1t was expected to prove by q
| witness Clark, tnat on the afternoon of April
| 3 he saw upon M-rket-street car Blanche
| Lamont with a young man not the defendant.
| Clark was in one of the Eastern States during
the trial and his deposition was there taken.
| 1t was to the effect tnat he saw Blanche
| Lamont and young man, not answering the
| description of defendant. together upon a car
upon day in the latter part OF March or the
| frs t part OF April, but the date he could not
| fix with postiveness. He said that he believed
| that he had told lawyer that 1t was upon
April g. but that subsequent consideration
|
| this. There is here no suggestion of und ne
| influei ce or in ntimidation.
| The witness Uenahan) called for the defense
] testified from all that appears precisely as the
defense expected.
Mrs. Monnier, it is claimed, was expected to
| testify that upon the afternoon of April she
| saw young man, whom she would ldent tify as
| the defendant, enter the Emmanuel Church
| alone; thai, because of newspaper publica-
| tions and Interviews with her, her husb band
| became afraid that his business would be
| injured, ana between fear and anger so talked
! with his wife. and had others do so, THAT she
| became uncertain as to the time" This
| declaration is made upon the information and
| belief of defendant. II is not supported nor
| corroborated. Even the source OF atlantis in
| formation is not mentioned. 1t does not ap-
| pear that Mrs. Monnier was not at all times
| within reach OF process, yet no attempt was
| made to introduce her testimony. This show
| ing is certainly insufficient 10 call for re-
versal of the case.
The Judgment Affirmed
Upon consideration of the whole case we
| discern no error to the prejudice of any of the
| substantial rights of defendant, wherefore the
| judgment and order appealed from are af-
| tirmed. HENsHAw, J.
| We concur: GARoUTTE, J.
VAN FLEET, j.
| MCFARLAND, J.
| HARRISON, j.
| TEMPLE, J.
| McFarland's Concurring Opinion.
| have signed the opinion of Mr.. Justice Hen.
shaw, and thereby concurred in his opinion
! and in the judgment of afiirmance. But
| while i can see no legal ground for reversal
| viction of appellant would have been much
moro satisfactory if he had been tried in some
| county far beyond the reach of the threatening
atmosphere which surrounded him at the