Los Angeles herald., 1907-05-02
CASES AGAINST THEM ARE DIS
MISSED
Kelly and HombIe, Held as Being Re-
sponsbe for Santa Fe Wreck,
Released by Township
Justice

: on the night of March 90, were yester
day discharged from the custody o.
officers and the charges of man.
slaughter against them dismissed by
Justice Stephens in the township court
The dismissal of the charges was q
surprise to those directly interested ir
the prosecution because it had been
stated that the strongest possible case
had been secured against Kelly, the en-
gineer, and plans were being made for
a vigorous prosecution in the superior
court on the theory that Kelly would
be held.
1T proves that forgetfulness cannot
be counted on as criminal carelessness, -
stated Judge McComas, assistant dis
trict attorney, who prosecuted the case
against Kelly.
"In this case 1 argued that Kelly.
the engineer, had received his orders
from Homble. to stop at certain point;
that he climbed up in his engine and,
ignoring the orders, or forgetting them,
ran on by the station and precipitated
the collision that resulted in the death
of several schoolboys. Now, 1 held that
a man who forgot orders eight minutes
after they were given him was guilty
of criminal carelessness, and l had as
strong case as we will ever be able to
get on a charge of that kind, but the
law will have to be remedied before we
can do anything to the man who for
gets"
Wreck Killed Six
The college special wrecked at the
Buena Vista street bridge had on board
several score of school boys and girls
and in the collision six of the boys
were killed and many injured. The dis
trict attorneys office took prompt
measures in the case, arresting both
conductor and engineer even before the
coroner's jury had held them RESPONSE
BILE for the disaster.
Both trainmen fought the case vigor-
ously. The case against Homble, the
conductor, was admittedly weak, be-
cause after receiving the orders he gave
them to the engineer and was collecting
his tickets a few moments later when
the accident occurred.
Yesterday Justice Stephens complete
ly exonerated Homble and dismissed the
case and then did the same in the case
against Kelly on the ground that for
getfulness was not criminal careless
ness. The Justices decision is covered
by many authorities carefully studied
up and will probably be used in the
future as an authority along that line.
The decision is as follows, verbatim,
from the shorthand reporters manu-
script:
Justice Stephens Opinion
Realizing that this is of some pub
lie interest 1 desire to set down my
opinion and thought possibly it might
be of some benefit to the defendant
and also in justice to myself. The
evidence in these cases concerning Mr..
Homble, aside from that going to his
good character as a man and con-
ductor, is that he received the orders
and properly communicated them to
the engineer, with the information that
he did not know which was tower No.
1, or something to that effect; and on
the map or chart furnished him by the
company, showing the locations of
towers and so forth, and crossings and
the like, the switch which was near
we will say something like hundred
feet-called tower No. l, was what
was designated a straight lead, which
had never before been used for pas
senger meets The evidence leaves it
in doubt whether the tower at the
crossing of the Southern Pacific and
Santa Fe tracks has ever been Off
cially denominated tower No. 1 by the
Santa Fe.
Now, it was Mr.. Hombles duty to
take up tickets at his earliest oppor-
tunity. 1t is only what is reasonable
and what the law would secure to him
to presume that he looked at his chart
and, seeing no tower indicated within
the yard limits, began his regular taxi
ing, and was disturbed a few mo-
ments later by the collision. Most of
these facts as L have set down here
loosely with regard to Mr.. Homble are
applicable to the case of Mr.. Kelly.
OF course, all excepting the taking of
tickets.
I'm addition to the testimony as ap-
plying to Homble, the fireman saw the
semaphor, or, as he called it, a target
from the tower, indicating a clear
crossing. That was the sign or light
or whatever sign it was, indicating "a
clear crossing. And he understood from
shake of the head from Kelly some
little time before they got to the tow
er to mean all right. About the only
other evidence that is applicable or
that appertains to Mr.. Kelly's position
and not to Mr.. Homble is that i'm
mediately after the accident he said:
I forgot
Nov, those are the circumstances
of the evidence that have impressed
me in this case, and Judge McComas
has referred us to or reiterated the
portion of the penal code which reads
as follows: No person is punishable
for an omission to perform an act
where such act has been performed
by another person acting in behalf and
competent by law to perform it. Now,
Mr.. McComas practically comedies, and
l think rightfully, that that would ex-
cuse anything that might be blamed to
Mr.. Homble in this matter. However,
| have mentioned the facts and based
the discharge of Mr.. Homble, which
l now make, upon the facts and not
upon that mere section of the code.
Engineer Not Liable
Now, if this engineer had been
drunk, as has been indicated, or if he
had left his post of duty and an ac-