The herald. [microfilm reel] (Los Angeles [Calif.]) 1893-1900, 1897-07-23
THE TUPPER AFTERMATH
Harris and Jenkins Not Subpoenaed
Though a Return Was Made

two witnesses who abScOnQed lmmedl-
ately after the Topper trial, and who
were capturde by Bernard L. Mills, Esq.
one of counsel for the defense in that
case, were brought up in department one
| yesterday.
This time they appeared as principals
and not as witnesses or as "feigned &C.
cessories." They must show cause why
the should not be punished for contempt
in having ignored the subpoena served
upon them. Their appearance in court
developed a very curious state of affairs.
Walter NJ. Rose also of counsel for the
defense in the Upper case, was sworn
and stated that he served a subpoena
upon the defendants in the Chicago
house. They were both in bed when he
went there. and jenkins had his head
covered with the bedclothes so that he
could not positively state that he was
the man in bed with Harris. At the
same time he was advised that it was
Jenkins, he read to them the subpoena
and Harris remarked that they had also
been subpoenaed by the prosecution.
Judge Smith was in momentary doubt
how to proceed, no affidavit having been
filed setting forth these facts, but Clerk
Logan explained that the matter of the
defendants having been eubpoenaed by
the prosecution was matter of record
in the Topper case, and the subpoena
was produced. The document was ad
dressed to P. J. Kennedy, and the names
of the witnesses appeared as follows:
wv E. Kramer, Maggie Brown, Fay
| Harrison. J. D. jenkins and - Scott"
The printed words in the body of the sub
| ri,,er hot oil h n
been made were scratched out, and it
was signed, John Burr, by Con NAL
lory" Con Mallory, the detective at
tached to the district attorneys office,
explained to the court that he had hand
ed blank subpoenas to Jailer Kennedy
to serve upon Harris and Jenkins, and
upon the supposition that he had done
so made return of the originals as If
they had actually been served. But they
hadn't. Jailer Kennedy explained that
he had omitted to make service because
he had not seen either Harris or Jen-
kins.
The court appealed to Mr.. Mallory to
know what could be said in regard to
such a dangerous mode of making re-
turn in light Of the fact that the court
proceeded, in the absence of witnesses,
by attachment. But there really was
nothing to be said in such premises.
Deputy District Attorney McComas
volunteered the remark that he had got
an attachment for the men in the inter
est of the defendant (Tupper), but Mr..
Mallory contended that no attachment
had been issued. This side issue to the
Upper case seemed to be getting balled
up in as beautiful manner as the main
case itself Young Harris showed an in
clination to cry, Jenkins stood up with
a combative look on his face and said
that Mr.. Rose had no knowledge that
he was present when he served the SUBJ
poena, and a very interesting tangle was
imminent. The court, however, solved
the difficulty by directing Mr.. Rose to
prepare and file an affidavit setting forth
the facts, so that he could deal with the
matter intelligently.
During the afternoon Mr.. Rose did So
the affidavit reading as follows:
In the superior court of the state of
California, in and fer the county of Los
Angeles.
In the matter of the contempt proceed
ings against Fay Harris and John Doe
Jenkins.
geles.-Ss.
w. Malins Rose, being duly sworn, de-
poses and says: That he is, and was
at all times hereinafter mentioned, a
male citizen of the United States above
eighteen years of age; that on the 14th
day of July, A. D. 1897, he received a
subpoena duly issuing out of the supe
rior court of the said Los Angeles cour-
ty California, and signed by the clerk
of said court, commanding that one Fay
Harris and one Jenkins appear before
department one of the said superior
court on the 18th day of July, 1897, at
10 o'clock a. m. of said day, as witnesses
on behalf of the defendant in a criminal
action prosecuted by the people of the
state of California against Colonel l..
Topper, therein pending and to be tried;
that on the said 18th day of July, A. D.
1897, at Los Angeles in said Los Angeles
county, California he served the said
subpoena upon the said Fay Harris per-
sonally, by showing to the said Fay Har-
ris personally the said subpoena and in
forming him of its contents; and affiant
AYERS on information and belief that on
the said 14th day of July, in the city of
Los Angeles, in said Los,Angeles county,
California, he served the said subpoena
upon the said Jenkins personally, by
showing to the said jenkins personally
the said subpoena and informing him
of it's contents.
And affiant further AYERS that the said
Fay Harris and Jenkins, and each OF
them, disobeyed the command of the
said subpoena and failed to appear be-
fore the said department one of the said
superior court, on the said 18th day OF
July, A. D. 1897, at 10 o'clock a. M, OIL
at any other time on the said 18th day OF
July, A. D. 1897; and that thereupon or
the said 18th day of July, A. D. 1897, ar
attachment duly issued out of the sail
superior court directed to the sheriff Of
Los Angeles county, and commanding
that he attach the bodies Of the said Fay
Harris and Jenkins and produce then
before the said superior court forthwith
under which said attachment the sale
Harris and Jenkins were thereafter ar
rested and placed in custody.
M. MALINS ROSE
A SAFE BANK