The San Francisco call., 1907-06-26
Attorneys

box on February u. 1907. The order
or the court by which the LA names on
the old grand jury list wss certified 70
the clerk included the words. Grand
jurors for the year 1906" The code
provides that grand jurors selected
from the list shall serve until a new
grand jury list is returned The de-
fense contends that returned means
certified TO the clerk and the prosecu-
tion that returned means into court.
II indeed returned means what the
defense claims il does. then the Oliver
grand jury. in the light of the decision
IN the Bruener case on which the in
validity Of the Wallace grand jury was
determined. is without legal existence
and has been since February. All of
the bribery indictments affecting local
captains OF industry were returned
subsequent TO that time.
In view OF what is generally under
stood TO have been the attitude of the
appellate court in the SchmitZ case, the
defendants in the gas cases are not
believed 10 take their alleged law point
seriously. 1t is the current belief THAI
Schmitz' sudden withdrawal Of his mo-
Lion from the appellate court was due
10 receipt Of Information that the de-
cision Of the court which was 10 be
drawal would be adverse TO his motion.
In the good old days, when Chris
Buckley fed 10 Canada pursued by a
Wallace grand jury indictment, there
were no district appellate courts. A
motion akin 10 that interposed by the
gasmen yesterday went on appeal di-
Tectly to the supreme court The Wal
lace grand jury was secured through
an elisor appointed by the court ap-
81 Z hD fc~la Il "a -
scter Of the regular list. Buckley went
10 Canada. and Supervisor Bruener at
tackled the indictment against him on
the ground OF invalidity. His motion
was sustained by the supreme court.
Popular opinion, backed by the vigor-
Gus dissenting opinion Of Justice
Beatty. ascribes the decision of that
court 70 political pressure rather than
legal deduction.
Garret McEnerney's efforts to secure
an immediate ruling yesterday. coupled
with Barrett's later explanation Of
their reasons for interposing the ex-
traordinary writ. has given rise to a
well defined suspicion that another at
tempt TO play the Southern Pacific's
political department against the in
tegrity Of the courts is to be made:
The motions were interposed yester-
day morning Immediately after the
animation of Secretary Burnett of the
grand jury and the inquisitorial bodys
stenographer, Miss L. H Condor. The
code provides that within a reasonable
time after arraignment the defendant
must plead. answer or demur.
The interposition of the motion to
stay proceedings which involves a mo-
tion Of dismissal. brought forth a Wig
orOus objection from Special Assistant
tion as thing unknown TO law"
McEnerney declined to argue in favor
Of his motions and Judge Lawlor de-
clined to rule. saying:
The order OF the court on the tender
OF these motions will be held in abey-
ance"
McEnerney attempted to force q rul-
ing and finally demanded a decision.
Judge LswIor defeated the attempt to
piicatiOn for writ from the appellate
court. He said:
The court refuses to order these
motions fled at this time. The order
OF the court viii be held IN abeyance-
You viii answer"
In compliance with the courts per-
cmptOry command the defense submit
ted motions to set aside based on vir-
tually the same grounds as those set
az ~ lit 0A4lCA UCACu0dAlS anu III ll6
motion for a stay of proceedings.
Barrett admitted later that the de-
fense had made use Of the extraordi-
nary writ for the purpose of getting
the case before the higher courts i'm
Inediately- If the defense fails to Sc
cure the relief il seeks from the ap-
pellate court. ii viii go TO the supreme
court And if that court. as the result
of political pressure, can be made to
sustain the motion. all Of the work Of
the graft prosecution, in so far as the
Indictment Of the trolley, Parkside and
gas hnanciers is concerned, will be
wiped out
The proceedings yesterday morning
in the gas cases were brief McEnerney
elected from Burnett the manner in
which the stenOgraphers Of the grand
jury were employed and inducted into
Office. Miss Condon's testimony set a.
rest the claim that the defense had not
received q transcript Of all the testi-
Inony touching their cases given before
the grand jury. Miss Condor said she
had taken and Transcribed all the tes-
timony in the gas cases and that the
transcripts were complete.