The San Francisco call., 1897-02-11
More Than a Hundred Weak
Spots in the Prosecu-
tion's Case.
GLASSES AND RULES SHOW
DISCREPANCIES.
Attorney Reddy Shows That the
State Has Failed to Establish
Its Main Points.

Yesterday was an eventfuI day in the
trial of J. J. Cooney, charged with perjury
in certifying that he took the late James
G. Fairs acknowledgment to one of the
most important deeds in the litigation
over the Fair millions.
The defense put in more than a hun
dred strong reasons going TO show that
the Crocker blanks offered by the prose-
cution as evidence of fraud are not the
same as the blanks used by n otary Cooney
in taking the Fair acknowledgment Be-
fore this point was argued in detail there
were some preliminary proceedings of
minor consequence relative to the identi-
hcation of mportant exhibits in the case.
Judge Cook called Henry P. Smith and
Theodore Kitka to the stand the first
thing yesterday morning and had them
identify the Photographic exhibits which
they took few days ago for the prosecu-
ton and defense. The negatives and
proofs were marked by the court for iden-
tification.
After the identifcations were concluded
Attorney Reddy filed the following
motion:
Counsel for the defendant now move
the court to discharge the defendant on
the following grounds:
''First-It does not appear that public
offense has been committed; and, second,
there is not sufficient cause to believe the
defendant guilty"
Mr.. Reddy at once began an elaborate
argument in support of the motion. He
began by arra1gning Captain Lees and his
assistants Tor the jealous attitude they had
taken IN hunting evidence TO substantiate
private interests and claims, stating that
the prosecution of Cooney was merely
side issue undertaken for the purpose OF
destroying the value of his testimony to
be given at future time III the litigation
over the late Senator's millions.
II cite TO your Honor" he said, "the
welL-known case of the People against
Wells, in which the Supreme Court of
this State dealt with the question of what
elements go to make con viction OF per-
jury lawful, and l argue by analogy that
no case has been made out against the
the man they are so eagerly trying TO
hound to the penitentiary."
Mr: Reddy relied largely on the rule
which requires the testimony of at least
one witness to some material fact before
defendants may be convicted in perjury
cases. He said that the central fact in the
prosecutions S case was the attempt to
prove that James G. Fair did not go to J.
J. Cooney's office on the 9th of Septem-
Der, 1884, to acknowledge the pencil deeds.
He argued that no witness had come for
ward to testify to that important fact for
the people, and that the only evidence
even remotely tending to show the prose-
cutlon's contention was that the certifi-
Gates used by Cooney were not in existence
until nearly TWO years after their alleged
date.
"This is the ultimate fact in the case"
said the speaker, land all other facts
merely circle about it. But l hold that
even this fact loses its value when care
ft,II
tions that the alleged deed in this case
was ever delivered to any one, and it is
well-known law that if deed IS not de-
hvered 1t Is worthless and Meth er injure
nor beneht any one. 1t may be argued
that the deed was executed, even if not
delivered; but the word executed, used in
this sense, is not general enough to repair
the breaks in the prosecutions case.
made the broad statement that the
charges against defendant are immaterial.
Most OF Its recltations are of merely evil
Dental facts. All this talk about differ
ent blanks and about a bank meeting
amounts to nothing except as evidence
feebly tending to show an alibi, but it vio-
lates the main rule about alibis, namely,
that the alibi must preclude the possbil-
ity that defendant was at the place
charged.
so We sift it all down and come to the
one fact, the main allegation of their
case, which is that Senator Fair did not
appear at Cooney's Office on the date
charged and that Cooney's certificate is
false.
"Now, let me remind the court of what
is common knowledge to your Honor. |
want to say that all the burdens are on
the prosecution. They try to overcome
the oath of the defendant by certain cir
cumstances. Well, to make their case
they must absolutely overcome the de-
fendant's oath, override the presum ption
correct, and also overcome the strong pre-
sum ption OF the law that the defendant is
innocent. They have feebly tried to stag
ger at such proof by two methods. First,
they have tried to show by his valet,
Clarke, that Fair was not at Cooney's
Office, and they have also tried another
method. They have tried to show that
certificates of the character used by
Cooney did not exist at the time.
"Weil, Clarke was a new find for the
prosecution and surprise, but we must
remembe that If witness is badly needed
the San Francisco detective force requires
but little time to discover him. However,
Clarke was harmless wonder in his wsv
He could rememb Der nothing OF any value
to us or of any danger to him. In truth
his memory extended to nothing except
what the prosecution wanted him TO re-
member. The prosecution declined to
produce Clarke's books of memoranda
and the presumption arises that the con-
tents of those books were prejudicial to
the case OF the people. l desire to say
here and now that if the evidence of such
a man as Clarke, if the testimony of
man with such treacherous memory is
to be of consequence, nobody is safe. He
remember nothing-did not even recall
the death-dealing attempts of the Senator
to kill fishes in the Colorado River by
dynamite.
"But even if Clarke's evidence were
true ne has not accounted for all the time
on the day in question. He was in room
and Fair was in room @. A converse
ton could not be overheard and for two
hours the witness could not know whether
or not the Senator left the room"
On the point of the Croker certificates
Mr.. Reddy argued that no one had sworn
what was printed before 1895. The super