The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1899-06-13
Jim O'Brien Assigned
to San Quentin.
NEW TRIAL IS DENIED HIM
JOSIE KERR OPPOSES ABOUT
FIXING JURORS.
End of Sensational Case in Which 6
Witness Was Kidnapped and the
Grand Jury Investigated
Bribery Charges.
Oakland Office San Francisco Call
qOG pr, 1

sos Broadway, June u.
James e. O Brien convicted Of crimi-
4ally assaulting Miss Nina Ogilvie de B.
Lopez OF Pleasanton in November 1897
was this afternoon sentenced by Judge
ellsworth to seven years Imprisonment
IN San Quentin.
Inc case was one of the most sensa-
uonal of its kind ever tried in Alameda
county. The crime was most heinous and
three times was O'Brien tried. On the
hrst occasion he was convicted and SEN
fenced 10 ten years, but the verdict was
set aside on some technicaIity. On the
second trial the jury disagreed and
prompted an investigation of bribery
charges by the Grand Jury. The third
trial ended week go with a verdict of
conviction.
The case moreover had been replete
with surprises, on one occasion Josie
Kerr, witness for the prosecution, being
kidnapped.
When the matter came up for sentence
to-day ex-senator Frank MCGOWAN on be-
half of the convicted man moved for a
new trial on the ground that the verdict
was contrary TO law and unsupported by
evidence; that there had been errors Of
law, and that the attorneys for the people
nad been guilty of legal misconduct preiu-
qlclal TO defendants rights. Accompany
ing the motion were filed several. sensa-
uonal atidaVits. In one of these Witness
Josie Kerr deposed that Detective Her
pert had on June l, 1899 stated to her
lhat he was sure O'Brein would be con-
Nlcted, or else the jury would not agree:
bQl they would not acQuit because part
OF the jury were fixed" Also that he
thought a few Of the jurors might hold
out but he was sure they would find
- Brlen guilty. because they were afraid
q sri being called up by the Grand Jury"
The Kerr woman further deposes that
Attorney Chapman of counsel for prose-
cution had said If there should be a dis
agreement by the jury there would be a
new trial and thew would keen ir,,
meaning O'Brien."
Another affidavit was from Richard Ma
Kerr had stated: II got 500 every time I
went to Oakland. 1 got $50 from De Lopez
Tor teStlfylng against Jim O'Brien. I will
send Jim O'Brien and his brother John to
state prison" Still another from James
Mahoney was To the effect that Josie Kerr
nad SHOWN depOnent $50, stating she did
not come to court for health; that she
mad been paid said $50 by one Herbert "
DetectVe Herbert filed counter affidavit
denying the charges.
Herbert AYERS that In a conversation
with Miss Kerr as to the result of the
trial the latter had hoped O'Brien would
he convicted because he had at one time
had her kidnapped and had otherwise
abused her The detective admits he
legally paid her travelling expenses and
maintenance during the trial.
Attorney MCGOWAN made a very force
tul plea for new trial. After arguing
the points he had advanced in his motion
he suggested that though in law ii mat
tered not whether a woman criminally
assaulted was VirtuOus or lewd so far as
affecting the guilt or innocence of the
defendant, vet in O'Brien's case the peo-
pie had been permitted to prove that Miss
de Lopez was chaste and virtuous when
assaulted
Judge Ellsworth denied the motion for
a new trial. but before he imposed SEN
tenCe Attorney MCGOWAN moved for an
arrest Of Judgment on the ground that
the original information fails to specify
in what State the alleged crime was com
mitted. This motion the court also de-
MED and fixed O'Brien's sentence at seven
years imprisonment.
Notice of appeal was Immediately given
and certificate of probable cause issued
staying execution of judgment Pending
the appeal O Brien will remain in the Gus
tOdy Of the Sheriff.