The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1897-12-30
5oooooooo 100000 5000

y Inc judgment Is tnat ne DC o
o discharged. 0
100000 100000 oooooooooo
The great sensation has been sprung
in the Durrant case. and it has gone
the way Of all previous ones. Juror
Smyth has been found not to have
been in contempt of court, and he has
been released. and the only result is
the strengthening Of the conviction
that the prisoners hope Is In the Gov
ernor alone.
Juror Smyth has been discharged,
but he is not entirely free; he has es-
capped the contempt matter only to find
himself sued for $50, 900 damages for
Islander by Mrs. Durrant, the action be-
ing based on the statements for which
he was cited for contempt. John H.
Dickinson and w. W. Foote are the at
torneys, and Mrs. Isabella Durrant
and w A. Durrant are plaintiffs.
Then, too, the machinery Of the Su-
prerne Court will be started again this
morning on an appeal from the SEN
tence last passed by Judge BRhrs, and
a writ of probable cause Will be asked
for to stay the execution until the ap-
peal can be heard.
The time is short, and the attorneys
are working quickly, but still more
than ever it is believed that Durrant
has played his last card.
The proceedings before Judge Wal
lace yesterday were very short. Cen
eral Dickinson opened the afternoon
with a motion for a continuance until
Monday He based his motion on the
70 ~ hot la mn fy1cr he h11
received a letter telling him of four
people who would testify that the
statements made by Smyth were based
on information he received while ac-
tually a juror in the case. He said
1t would take until Monday to arrange
this evidence in proper form for pre-
sentation.
Judge Wallace asked to see the let
ter, and, after reading it, he denied
the motion for a continuance, as he
said he could not learn from the writ
ing that the evidence it referred to
would affect the case.
The attorneys were ordered to pro-
coed, and FoOte was asked If he would
further cross-examine Smyth. He said
no" He was asked If he had further
testimony and again he said no.
Henry E. Highton, who represented
Smyth, was asked If he had any tes-
timony and he said he had nothing to
offer. Then the attorneys were asked
II they would argue the case. Mr.
Foote declined, and Mr.. Highton said
he had nothing to argue.
Then Judge Wallace read the short
opinion he had prepared and Juror
Smyth was told he could go. The
opinion was as follows:
The accusation exactly stated that
smyth,. while sitting as a juror in the
case of Durrant, did receive informa-
ton bearing upon the merits of the
case other than the information he re-
ceived through the testimony adduced
ings leading up to the verdict found in
that case. In support OF the accusa-
ton 1t has been proved by the evidence
peached and nnimpeachapIe a intef-
ligence and integrity that on
several occasions-the earliest one be-
ing several months after the verdict
had been rendered and Judgment pro-
nounced thereon-he (Smyth) had open
ly declared that while sitting as such
juror he had received information unfa-
vorable to Durrant other than such as
he had obtained by the evidence given
in court at the trial. But the fact that
Smyth did in fact receive such infor-
nation other than that afforded by the
evidence given in court must be proved
by evidence more specific and satisfac-
tory than his statement that he did
declarations made by him long after he
had ceased to act as such Juror and
had united in the verdict rendered in
the Durrant case. One who has been
a juror and united in rendering a YER
dict and been discharged from further
consideration of case will not ordi-
narily be heard by the court to assail
the verdict IN which he has concurred,
even by his own affidavit filed in i'm
parchment Of the verdict. It is against
the recognized policy OF the law that
he should be permitted to do that.
Such is the rule applicable 10 a motion
made for new trial. II discharged
juror be called in question for such
misconduct he is called in question, for
felony committed by him. Smyth here
denies under oath that he has been
guilty of the offense, and in the alb
sence of independent proof that he IS
guilty In fact, his mere declarations
subsequently made, that he committed
the offense, however satisfactorily
shown, do not of themselves amount
to sufficient proof of guilt.
The judgment is that he be discharged
General Dickinson showed the letter
to no one but the Judge. Even his as
sociates had not seen it, for he said it
was a confidential matter and all
kinds Of trouble would follow If he
showed it to any one The attorneys
for Durrant took their defeat with evil
dent concern.
While the case was in progress be-
fore Judge wallace Mr.. Boardman, of
Durrant's counsel, was hunting for
Judge Bahrs to present to him a
transcript on appeal and ask for a
writ of probable cause. He found the
Judge, made his application, and II
he will file his transcript in the Su-