The Idaho scimitar. [volume] (Boise, Idaho) 1907-1908, 1908-04-18
THE IDAHO SCIMITAR.

the United States VS.. MITCHELL in the Federal court
for the District of Oregon volume 1876 Federal Re-
porter, pages S96911 Judge Bellinger delivered the
opinion the demurrer in the reciting claims iden
teal with those in the demurrer sustained by Judge
Whitson. Judge Bellinger said:
For the last answer and plea it is alleged that the
district attorney, Francis ], Heney is very prejudced
against the defendant, and has been very active in
working up feeling against him through the
papers and otherwise, both in and out of court; that
defendant is informed believes and alleges that said
Heney was very Vndictve and bitter in his prose-
cution of the charge against defendant before the
grand jury and greatly influenced the jury to find this
indictment; and defendant alleges that, if Francis
J. Heney had not unlawfuly appeared before said
grand jury, this Indictment would not have been
brough-all to the defendants substantial prejudice.
1t is further alleged upon information and belief,
that said Francis J. Heney remained with the grand
jury and present when they celebrating
on the evidence and on the charge" and that he
greatly preudiced the defendant by arguments and
denunciations against the defendant and by threats
and intimidations towards all a portion of the
grand jurors all to the defendants further sub
stantial prejudice.
AS to the other grounds of objection to the indct-
ment- that Mr. Heney has been very prejudced
against the defendant and very active in working
up feeling against him. and has been very vindctive
and bitter in his prosecution of this charge-these
matters of which this court cannot take cognzance.
prosecuting officer may not infrequently appear
tive against defendant and bitter and vindctive,
and out of court The feelings and interests of
defendant tend to create in him unfavorable
opinion respecting the attitude Of the prosecuting
officer towards him. What is alleged is a mere
matter of opinion and to the effect of the conduct
attributed to the district attorney by that opinion
opinion is expressed and, if there in fact evil
dence of the facts to which the opinion relates, it
could not affect the legality of what has been done,
or afford ground for setting the indictment aside
The officer may, alleged, have greatly infu-
enced the grand jury to find this indictment" 1t is
not stated how this influence was Observation-Disclosures
by the production of evidence before them, and
pertinent suggestion respecting it, otherwise. 1t
is stated that "if said Francis J. Heney had not
so unawfuly appeared before the grand jury, this
Indictment would not have been found. All this
cannot be other than opinion If he had claw
fully appeared before them, the presumption is that
the same result would have followed. In other
words Mr.. Heney's influence with the grand jury
cannot possibly be said to have been affected by
his residence and that is the ground of his alleged
disqualification to hold the office. All these matters,
and those which relate to his alleged presence while
the grand jury deliberatng-to his arguments,
denunciatons, ntimidations, etc,-are indefinite and
vague. The district attorney may explain both his