The San Francisco call., 1898-12-10
Sensational Affidavit Will Be Filed This Morning in the Supreme Court to Test the Legality
 of the Proceedings
the Defenders of the Accused Woman and Seeks to Cook From Taking Action in Litigation That
 Must Prove FruitleSS

to show that the laws of this State and of the United States are inadequate to punish any one, for any crime, com
 mitted under certain conditions. This
 is the second point that prominent citi-
 zens of this city seek to have de- termined.
 The case in which Mrs. Botkin Is the central figure is an anamolous one. A
 murder has been committed, woman
 has been accused and the fact remains that punishment cannot be inflicted be- cause the laws of the United States are 1 insufficient. In the petition for a writ of prohibition that will be filed this l morning W. l.. Harper will ask the Su- preme Court of this State to declare If the laws of this State and of the United States are actually inadequate to the conditions presented by the Bot kin case. It is probable that the ter rible dignity of the issue involved will
 prompt the Supreme Court to postpone the trial of Mrs. Botkin until the ques- tion has been settled.
 The resumption of the trial has been
 set for Monday morning. If the writ
 of prohibition asked for by W. l.. Har- per be granted the Botkin case will not
 proceed until the Supreme Court has passed on the question that has now | been raised. The jury in the case has already been selected. the Prosecuting l Attorney has made his opening state
 ment, and everything is in readiness | for the reception of evidence. The trial
 has already cost the State thousands 1 of dollars. Chief of Police Lees has
 received from the Treasurer. by order ] of the Superior Court, sum far ex- 3ceeding SSs00. MT. Ha1per will contendiR l his petitios for writ of prohibition that the akard of this money was ab-
 solutely illegal, because the cause in
 which the money was advanced was beyond the Jurisdiction of the court.
 Other sums of money, greatly exceed ing that expended, will be awarded.
 and to prevent this as we'll as to cir
 cumvent the plans of Mrs. Botkn's at- | torneys, the writ of prohibition will be
 demanded. In this demand MT. Harper
 seeks no personal notoriety.
 AS spokesman and representative of
 many of the leading men of the city he l desires to know whether or not the city
 will uselessly expend money in fruit | less action. He seeks also to know
 whether or not it is possible for a per-
 son, under the laws of the United States
 and this State, to commit a murder and
 escape unpunished. Mrs. Botkin, it has
 already been determined, cannot be ex-
 tradited. If it is true that legally she
 cannot be tried in this State w. L. liar
 per, I. J. Truman, Asa R. Wells, mem 1 bers of the Merchants Association, and
 other prominent citizens demand to
 know. If the Supreme Court shall de-
 eide that the courts of this State have
 no jurisdiction then some means will
 be employed to remedy the defect in | the laws. This is possibly the first time
 in the legal history of this State or any | other American State that an appellate
 court has been asked to prevent court
 of inferior jurisdiction from proceeding
 with the trial of person accused of an offense. It is not the first legal l anomaly that the Botkin case has pre- scented.
 1 Under the usual rules of legal pro-
 cedure a person not directly interested | in the issue of a trial has no right to | interfere. MT. Harper will contend in l his affidavit, however, that as a citizen and a taxpayer of this State he is per- sonally interested in the expenditure of public money. He will claim that in his | capacity as citizen and taxpayer he has right to know that public moneys are legally disbursed. If Mrs. Botkin | Is not being submitted to a legal trial | it necessarily follows that public funds are being illegally spent. This is the | first point that the Supreme Court will
 be asked to settle. It happens that no l Federal question is involved in this case. If the Supreme Court of this State decides that Judge Cook has le- 1 gally the power to try Mrs. Botkin no other court can interfere. The woman may then be tried and must accept the
 decision, even if it be at the sacrifice
 of her life. It is claimed that the laws of this State and of other States 1 hold that trial for murder must be held
 where the instrument of death took l effect. In the Botkin case this con- summation of the crime took place in
 Delaware and not in this State. Un- l der the laws it would seem, therefore, 1 that the woman should be tried in Del- aware. The Supreme Court of this | State has refused to extradite the woman. Her defenders have planned to raise the question of Jurisdiction. l It is their purpose to permit the State l to expend a vast sum of money on what they believe to be useless trial. Harper, and those supporting him in his petition to the Supreme Court, seek to prevent this waste of the public funds, if it be waste, and to deter mine now, rather than later, the ques- l tion whether or not person accused of murder under the conditions that Mrs.
 Botkin is charged may be tried. If
 the Supreme Court decides that the
 woman cannot be tried in this State
 and cannot be extradited to Delaware.
 the Supreme Court in its decision
 will have rendered great
 public service If the laws, as they ex-