The San Francisco call., 1907-06-12


private prosecutor employed by private
fnterests-s began Delmas. when
Cobb interrupted him by retorting;
which isn't true. as Mr.. Delmas
well knows"
What is the truth them" questioned
Delmas. without heat
Il am here at the request of the
district attorney and representing his
Office. You know that" answered Cobb.
Are you regularly appointed dep
uty district attorney"
I am not"
Are you appearing. then. without
compensation"
Does the counsel wish me to take
the witness stand2" parried Cobb. Il
will take ii and answer if such Us the
case"
No ] do not. You volunteered 10
explain said Delnaas, and then, turn
Ing to the court, he continued
But the learned prosecutor does ap-
pear in private ca pacity, for official po-
sition he has none and then bcimas
pursued his Thaw case tactics by max
ing his every reference ia Cobb during
the remainder of the day noticeable
from its seemingly pure UNCONSCIOUS
ness of intent. yet every reference wss
IN the same -aEords--'the- learned pri-
Nate prosecutor"
PROSECUTION SCORES
The first point Of the day was scored
by the prosecution in preventing the In
PRODUCTION Of testimony which DeinTas
and Attorney T c. Coogan for. the de-
fense attempted to secure in substantial
tion OF the amendment to the original
motion introduced last Friday, in
which IL was alleged that the grand
jury was improperly drawn and was
without authority to act when the true
bills against Glass were voted
County Clerk Mulcrevy was recalled
10 the witness stand and through his
testimony the dates of the drawing of
the grand jury and its in1panelment
were secured and the. facts. relative to
Sts formation were fixed by stipulation
il was agreed that on october "a of
last year 80 venirenen were summoned
for grand Jury service. Of whom 2s ap-
peared. four being absent Eight of
the IS were excused and it was neces-
sary to draw a new panel of. u. names
to complete the Jury. The minutes
Of the court reporter who of5ciated at
that session show that the four names
were returned 10 the jury box and the
effsrt of the prosecution was based on
the attempto show that B. P. Oliver.
the present foreman Of the grand jury,
was one of these four absentees whose
names We're returned and that he re-
appeared as one of the additional
panel of T. $500
To secure a statement to this effect
from Mulcrevy and thus lay the foun-
dation for an attack on divers eligi-
.bility was the object Of the defense,
but Mulcrevy was unable to state from
his independent recollection who the
four absehtees. We're. +. He was willing z
TO refresh his memory by reference to
the reporters notes, but Assistant Dis
trict Attorney O'Gara objected to this
and his objection was sustained by the
court.
The arguments of the prosecution
and the defense, which continued
throughout the remainder of the day
without reaching a conclusion. have
settled themselves into a definite con-
troversy. Cobb holds that the suffi-
cheney Of an Indictment can be ques-
toned only on the certain grounds set
forth in the statutes, that the code
provision in this respect is exclusive,
and that the suficiency or in
suficiency Of the evidence on which an
Indictment is based is not included as
cause for setting il aside this cannot
be made the basis Of an action to quash
the true bill and the court can have no
authority 10 review the evidence
secured by the grand jury.
Delmas. on the other hand, has at
tackled this position as being directly
opposed to the constitutional rights of
q defendant. He asserts that the
statutes are not exclusive in fixing
grounds for setting aside. but that If
such is the case they are unconstitu-
tional for the reason that they deprive
3 defendant Of his right of liberty re-
gardless Of the nature of the evidence
against him.
CoBB's AUTHORITIES
cobb recited a mass of authorities in
support Of his contentious, quoting g
from the decisions in the courts Of 2s
states, as well as reiying upon several
federal court rulings. In part he said:
While an indictment does not prove
the guilt Of a defendant II raises a
presumption of guilt and a very strong
presumption of guilt up to the time of
trial, when this presumption necessarily
becomes secondary TO the presumption
Of Innocence. The court cannot look
into the evidence 10 overcome this
presumption but Is bound by it, A
court can Investigate evidence IN order
to decide the matter of bail, but even
II the evidence is found lacking In this
respect il does not do away with the
presumption.
Even had a court I1e rlSnl 10 III
vestigate the testimony taken before
the grand jury 1t would be a physical
fmpossibi4fty for IL. TO secure it cor
rectIy. The secrecy demanded Of mem
hers Of the grand jury and witnesses
who appear before II precIudes the
court from inquiring into the evidence
on which the grand jury acted. Fur
thermore, q transcript Of the testi-
inony taken cannot be presumed to
contain the evidence of guilt on which
the indictment was based. An effort to
have the court ke up tEss evidence
is an appeal from the grand jury to the
court and an effort to have the grand
jurE's acts reviewed
Claiming that the transcript OF testi-
raony furnished the defense. which II
has been admitted by the prosecution
contains all the testimony on which
the Indictment against Glass was. based
includes ne evidence of guilt Delmas
answered Cobb's citations with the de-
claration that if the law of californis
precIudes a review of such testimony
by a court the law Of California is con-
stitutionaIly wrong To show this he
went back to the principles Of common
law.
There is no pretense Of any guilt or
the part of the defendant 2 he said
"and il is a most deplorable and la.
mentable proceeding If the law of Cali.