The San Francisco call., 1897-03-04


osition finds no support either IN reason or
authority. To the act OF every rational human
being pre-exists a motive In every criminal
case proof OF the moving cause lspermisslble Is
and oitentimes is valuable; but 1t Is never es-
| sential. When the perpetratlon oil a crime
has been brought home to endant the mo-
| tive Tor it, commission becomes unlm Portant
Evidence OF motive is sometimes OF assistance
| in removing doubt and completing proof which
might otherwise be unsatisfactory, and that
motive may either be shown by positive evil
| dcnce or CLEANED from the facts and surround
| Jugs of the act. The motive then becomes
circumstance, but nothing more than cir
cumstance TO be considered by the jury, and
! its absence is equally circumstance in
favor Of the accused, to be given
such weight as they deem proper. But proof
of motive is never indispensable to convic-
Pointer VS.. United States. ISL U. S. 1896; John
son VS.. United States, 157 q. s., 1877 Clifton VS..
State, 73 Ala, 473; Sumner VS.. STATE, Blackf.
Ind, 579.) The welisprings OF human conduct
are infinite, and Infinitely obscure. An act
may owe its performance TO complex ana null
titudnous promptings.
Who knows each chord. its various tone,
Each spring, its various bias.
Or the deed may be due to single motive.
so black, so horrible, so monstrous, that even
when the books Of the learned climinologist
have been studio the normal mind still
shrinks from a belief In the possibility OF its
existence. In this case, what the motive may
have been 1t is not the province OF this court
to inquire.
Attitude of the Press.
During the impanelment of the jury, tie
defense made application for citations against
certain newspaper editors 10 show cause why
they should not be punished Tor contempt
because OF their publications relative to the
trial. The court refused TO interrupt the pro-
ceedings TO consider the matter tnen, and post
poned action, stating that at proper time 1t
would upon request take such steps as might
be contemplated by law. Again. during the
impanel ment OF the Jury, the application was
renewed, aud the courts response was the
same. No further request was made: and there
the matter was allowed to stand. This is
urged as reversible error.
While contempt proceeding for convenience
is presented in the cause out OF which 1t grows,
il is a separate and distinct matter, and no
part of the original case. (Ex parte All Mon,
n Cal, 1867 POWER to punish Tor contempt
is vested in courts for their own protection.
Its object and purpose is TO insure respect for
their rules and orders, obedience to their pro-
cesses, and fire dom from disturbance or inter,
ference with the due and regular course OF
their proceedings. Is AM and Eng. Enc. OF L.,
p. $50; Thompson OIL Trials, Sec ia
A publication during the course OF trial
which reflects on the court, or assalls the litl-
gants, seeks TO intimidate witnesses, or
spreads before the jury an OPT mon upon the
merits of the controversy, or threatens them
with public odium, or attempts to dictate the
decision, or in any improper way endea, ors
to influence the determination. Is unquestion-
ably a contempt OF court Tin re. Shortrid Ie 99
Cal. 532); but at the same time itlgant mas
n appeal from the action of the Judge III
dealing with the matter The Htigant may
not control this proce SIS, which is des gneo lot
the protection OF the court, and which Is TO be
invoked or not, rs its discretion may dictate,
but which should be employ ed freely where
the interests OF justice or the rights OF litl-
gants demand it. "The doctrine is well nigh
without exception that the issuan vel non
of contempt proceedings lies in every instance
in the sound discretion of the COURT "A Enc.
Plead. and Prac., p. 774.) If by the failure of
the court to proceed against the editors or any
of them defendant has failed to obtain the fair
and impartial trial to which the law entities
him he may make that appear upon his mo-
ton for a new trial, and the question will thus
come before properly for review, In this
case the question is raised in the manner lnd1-
Gated. and ii will be considered upon the mer-
lis in Its proper place.
Rulings Of tho Court.
Numerous objections were made and excep-
tions reserved 10 the courts rulings In admit
ting and rejecting evidence. These rulings
have been subjected TO critical examination,
including those which in appellants brier re-
ceiye no discussion, but are grouped by num-
Der and collectively assigned as error. While
none, therefore, have been ignored, we will
here consider only such as merit particular
mention.
a. DR.. Barrett was shown to be practicing
physician and surgeon. He peri rmed the
autopsy upon the body of the dead girl, gave
evidence OF its condition, and expressed his
judgment that the cause OF death was strangu-
lation. He was then asked, '.What in your
Judgment was the means used for the strangu-
lation ?' Objection was made upon the sole
ground that no proper found alton had been
laid for the question. The objection was
properly overruled. The objection does not
present the point that the fact sought to be
elicited was not the subject OF expert
inq uiry; nor is that proposition argued
in the briefs. That being conceded, the obiec-
tion that proper foundation for the question
had not been laid, could not be sustained,
when the witness was physician and surgeon,
whose competency had been abundantly
shown. The witness answered: II think the
means used were hands" The appellant in
this answer out, as the question called for the
witness Judgment, ana he only gave his
thought The expressed thought OF the ex-
pert was clearly his Judgment.
as exhibits was draped upon dressmaxer's
frame, which itself was not in evidence. IL
was not claimed that the frame represented
the height, size or figure of the girl. Error is
predicated upon :he use of the frame and the
refusal OF the court to order the garments re-
moved from it. The frame afforded con-
venient mode for displaying the wearing ap-
parei, concerning which much evidence was
taken. We can discern no more impropriety
or irregN! arity in the plan pursued than If the
garments had been hung upon q clothesine
or huddled into q corner
C. Mrs. Vogel, cross-examined by the defense
and asked how she fixed the date upon which
she saw Durrant as being April 8, replied that
II was because of postal card which her hus-
band received that day and which had been
directed to 732 Natoma street. "That place
we own, but is occupied by tenants have
never lived there"
.Q-Weli, is that your property or your hus-
bands property?
.A.-Whst he got is mine; what got is his.
"Q.-Do you understand my question?
asked you in whose name does the title to this
property on Nntoma street stand3" Here the