The San Francisco call., 1907-06-21
Judge Is Not
Interested in
Heney's Salary
Censures Attorney for
Calhoun Because
of Conduct

q
paid to Francis ]. Heney as
assistant district attorney will not
be permitted to figure in the
courts determination of the valid
ity of the indictments returned
against Patrick Calhoun, Thorn
well Mullally, TREY L. Ford,
William, M. Abbott and Louis
Glass. -
Judge Lawior ernpfatically de-
clined yesterday to permit Attor-
ney A. A. Moore, for the indicted
United Railroads officials, to intro
duce testimony calculated to
show that .Heney's salary was in
fact paid to another and that the. dis
position of-the salary had any bearing
on the presence of an alleged unau-
thorized person in the. grand jury room
Convinced that HIS attempts to secure
an agreement for stipulation from the
attorneys concerned were futile. Judge
Lawlor abandoned the endeavor yester-
to begin Immediately the introduction
of fgtestimony in support of its motion
tosset aside therjndictments, In spite
of the bickeFingETof connseIy the court
was enablAd to f5rce thaxproceedings
upsIo aep5int whefe thaSexa f1ination of
gfand jukeEsw asssth g .1lsset 4gSical step.
This examination will be taken up, this
morning and the court will endeavor
to have it completed before adjourning
crh ,, hat tubn In n
be disposed of at the earliest prac-
ticable moment. 1.-The court has instruct
ed counsel that he will expect them
to- begin their argnm efts ION Monday
morning.
Both sessions were marked by evil
dences9 9sofesll feeling on the part of
counse1y Which, resulted in two pointed
admoniIions addressed to A. A. Moore
by the Scouft.When the smoke of the
days battle had cleared away the
fruits of the engagement were appar-
entity enough. with ,thesgs.p prosecution.
The acour rta tIesa ref used sstoa. hear any
testimop " t1ysifing G. Heney,se salary and
its dispositfofT andssby nisssrulings had
narrowed '1he esSfi g hit .idow n.Ata ethe main
.contentfon as, 20 2 flssl sspaast1es
coNTENTIpN oFSDEFENsE
The. principal ground relied Upon by
the defense insits efforts to ogdisqualify
the Oliver grand jury embraced the list
from which the grand jury was selected
and the presence on the jury Of. James
e. Gordon The admitted matters of
fact were: The grand jury list COM
piled by the judges of the superior
court and transmitted to the clerk in
january 1906, cahsisted of Ia names.
From this list 80 names were selected,
and from THIS list the Brennan grand
jury OF 19 members was impaneled in
april, 1905. In securing the Jury of 19
there were drawn from the smaller box
containing 80 names total of 26. The
names of the seven men drawn but not
sworn on the jury, together with the
slips bearing the names of the four not
drawn, were preserved by the clerk in
separate envelopes. The grand jury
box containing the names OF. ia men
originally drawn was destroyed in the
fire April Is.
The original list as transmitted by
the judges and the, slips with the names.
of the Ii men drawn but not sworn on
the Brennan jury were saved by the
clerk. BY order of Judge Graham, then
presiding judge, the names of the H.
men, with the remainder of the original
f44. were placed--ins-a-peM-g grand jury
box October 10, when the oliver grand
jury was drawu..@Gordon. who became
member of. the Oliver jusy. was one of
the IL whose names welse returned to
the box. 1t also appeared that Ado1ph
Roos, whose name was among the II
was dead. and it was claimed that
Louis Rosenfeld had been excused be.
cause his membership in the national
guard gave himi exemption.
Aside from their objection to Heney
as an unauthorized person. the defend,
ants claimed that the jury itself was
", L., Il
the ground that a defendant was en-
titled first to a full list from which a.
grand jury was to- be. drawn and that
the return of the names of Roos and
'Rosenfeld. to 5 the box Twas plainly
Illegal and that Gordon having been
once drawn. could not legally serve on
the Oliver jury.
: rTney. also attack the restora ton OF
the grand jury box as not in compli-
ance with the act of the legislature in
special session, providing for the
restoration of records. e
Briefly. the, e9n tentfons' of the prose-
cution were that 3he;9cuhrt might re-
store its~s records %withoJft@ procedure
taking judiciaI~notice of its own rec
ords and that the court strictly COM
piled with statute law in ordering the
II names returned to the grand jury
box. & They question of judicial notice
has already been passed upon in the
case of records of his court restored
by Judge Carroll Cook of the criminal
branch of the court. Touching the act
of the legislature at the extraordinary
session, If that point is pressed the
prosecution will contend that the
statute does not apply to the case at
bar.
COUNSEL STILL DISAGREE
The statute in question provides
mode of procedure for the restoration
of records in civil or special actions.
The drawing of a grand jury is neither
civil nor yet a special action.
Counsel went into court yesterday
morning as far from agreement on
matters to be stipulated rs at the in
ception of the alleged attempt to get
together Judge Lawlor was plainly dis
appointed and spent nearly an hour try
ing TO find some few points on which
the attorneys for the defense and the
prosecution might agree, and in con-
sequence save the time of the court.
Hiram w Johnson, special counsel for
the prosecution, finally addressing the
court, said >.
6. our honor, 1t is apparent that we
are notsgoing to agree upon any spe-
cific question The time of the court is
being WASTED and / Issuggest that the de
fendants begin the presentation of tes-