The San Francisco call., 1898-12-11
State Supreme Court Receives Har= per'S Petition for a Writ of
 Prohibition.
The Issues Now Raised in the Great Case Discussed by Attorney General Fitzgerald and Judge
 Carroll Cook.

has been found, the allegation being made that nothing has been advanced to show that Mrs. Botkin actually con- mitted crime in this city or State.
 This position is met by perhaps the most important assertion of those who are concerned in trying Mrs. Botkin for murder. The laws of this State pro- vide that person may be tried here for an offense part of which was committed in California. This is the entire basis of the assumption that Mrs. Botkin' s | trial is real. The point, however, in the opinion of prominent lawyers and busi- ness men should be judicially deter mined.
 Attorney General Fitzgerald of this State believes that Mrs. Botkin is legal ly on trial, yet he also believes that the issues raised by her trial should. in the interests of public justice. be deter mined without delay. Judge Cook. the defendant in Harper's petition. con- siders that he has a right to proceed. Attorneys are divided in opinion. but all concede that the question is one of the greatest moment to the State and to the nation.
 
 tuted the proceedings before the Su- preme Court on behalf of Harper. out lined yesterday what he believed to be every issue raised by his clients pet1- tion. MT. Boardman said:
 ''The questions that are presented to the Supreme Court in the petition l filed this afternoon were discussed by me with several prominent citizens. and the matter of the advisability and of Yai icin 10 tion of jurisdiction of the Superior Court was well considered before any action was taken.
 T have not been over-zealous in the matter. I was prompted, 1 may say, to a certain extent in what have done. by the manifest exigencies of the case as expressed by these gentlemen. 1 did not file the petition for the purpose of gaining notoriety-I care nothing for that. I am solely interested in the inn portant principles that are involved in the determination of the questions that arise in this case.
 Tt has come to my knowledge that certain assertions have been made that there has been collision between my self, the persons I represent and the at | torneyS for Mrs. Cordelia Botkin.
 'I suppose this has been prompted by | the indifferent manner in which Mrs. Botkins attorneys have conducted her defense, which has led the public to be- lieve that there is some star play to be made somewhere in the trial of the case that will demonstrate the ridicu- lous position of the Superior Court and the authorities in their endeavors to convict Mrs. Botkin of a murder said to have been committed in this State There is absolutely no foundation for any statement that there has been any collision or association between my self and the attorneys for the prisoner
 ''I can state positively that they pos seSsed no knowledge either by Sug- gestion or insinuation that any such proceeding had been contemplated. The proceeding that was commenced yester- day has been made public and every element in it's character is shown by the paper itself"
 "A friend of mine this afternoon ap- preached me in slight consternation, saying that he had heard that con- | tempt proceedings might be instituted in the Superior Court to punish me for a manifest attempt to trif1e or meddle unwarrantably with it's exclusive juris- diction. I cannot believe that these i statements are anything but idle ru- morS. The question of being in con- tempt of the Superior Court for filing in the Supreme Court a document to contest legally the Jurisdiction of a l iONcl Couit lo pISpOSltIOuS. l The questions that are presented in 1 this application for a writ of prohibi- | tion may be stated to be as follows: .'The first question that is presented | for consideration is the right of a citi- zen and taxpayer to question the juris- diction of a court in a public criminal prosecution where the people at large are plaintiffs and which will involve the expenditure of a large sum of pub | lie money. The proceeding by prohibi- | tion is as old as the common law, and | the weight of judicial opinion is that | where there is a serious question of | Jurisdiction the question of jurisdiction may be raised even by stranger to l the litigation sought to be restrained.
 "The next question presented is as to the remedy of prohibition being a proper one. It has been held by the Supreme Court of this State that pro- hibition is the proper remedy to arrest the trial of a criminal action, where the indictment for any reason does not sustain the jurisdiction.
 With these preliminary propositions disposed of, we come then to the main proposition involved herein and that is, the question of the place of the legal and actual commission of the alleged crime of murder and the place of iu- risdictior for trial. The question of whether or not the State of Delaware or the State of California has iurisdic- tion to try this case has never yet been considered or determined.
 The eXtradition proceeding which was taken and decided in the Superior Court previous the filing of this in dictment determined only one legal pro- position and that was; that the au- thorities of both States having con- ceded that the crime was committed Tn the State of Delaware, and the accused person having been in the State of Cali fornia at the time of the commission of the alleged murder; whether this condi- tion of conceded facts was sufficient under the constitution and laws of the United States to sustain the interstate rendition of the accused person as a fugitive from justice
 The one point decided by Judge Carroll Cook and his fellow Judges sit tlng in bank was that the strict and infiexible provisions of the constitution and laws of the United States could not be construed to include such a case. Tn this decision the Superior Court fol-, lowed the decisions of the Supreme Court of the United States.
 The ultimate relief sought by this proceeding of prohibition is to deter mine the actual Jurisdiction of the S,I- npriOr COllrt tO trU fhic ooSa ru1.1