The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1909-05-20
WANT MCCARTHY
TO TELL WHAT
THE LIBEL WAS
Defendants in Criminal Action
Seek for Definite information
From Labor Leader
Anxious to Know if IL Is Dis
reputable to Confer With
Jere Burke


Carthy against Charles W. Hornick and
Ernest S. simpson, general manager
and managing editor of The Call, for
criminal libel, Police Judge Edward P.
ShortaIl yesterday first sustained and
then overruled the demurrer and set
the case for Tuesday. May %, at ,
o'clock
Judge Shortall announced, when
argument had been finished, that he
could not, in justice to himself. decide
the matter orhand and told the in
terested parties that he would have
TO have some time to consider the legal
points advanced by both sides.
Within few minutes, however, he
decided that the demurrer should be
sustained on the showing made by At
torney Walter Bacon Of the many de-
fects in the complaint. A little later
Judge Shortan decided that the de-
murrer should be overruled and this
ruling stood
Prior 10 this final determination of
what proved a veNatious question for
the committing magistrate TO decide.
Attorney Walter Bacon had shown that
the complaint was lacking in certain
essential allegations, and although
Judge ShortalI hesitated to rule off
hand that the complaint was fatally
defective. Attorney Cleveland L. Dam
had expressed his Willingness TO file an
amended complaint On the theory,
possibly, that d third attempt (there
have been two complaints drawn so
far would enable Mccarthy and his
lawyers TO submit paper on which
issue could properly be Joined. the
defendants offered no objection But
Judge Shortall's sudden change Of mind
and his decision that the demurrer
should be overruled obviated the ne
cessity for this step.
DEFENDANTS WANT SPEEDY TRIAL.
On leaving the courtroom Mr..
HOrnick and Mr.. Simpson expressed
satisfaction with the judges final rul-
ing, declaring that nothing suited them
better than a speedy hearing of the
case on its merits.
Attorney Bacon. for the defendants,
tried hrs best 10 have the case heard
without delay, but il wss found that
next Tuesday would be the first day
which would be convenient for all
parties concerned. On that afternoon,
unless the complainant ipterposes an
other delay, the case viii be proceeded
with and p. H. Mccarthy will have the
opportunity TO prove that he was
libeled by the publication of the news
of the conference with Jere Burke
which he attended.
When the case was called yesterday
morning Attorney Z. Schwab appeared
for John .. Spreckels, who had left
town after being admitted to bail
There was some discussion as to the
necessity of the defendants being in
court in a case of indictable INSIDE
meanor, the Judge finally instructing
the attorneys to proceed despite the
absence of one of the defendants
In fling his demurrer to the COM
plant Attorney Bacon stated that It
was both general and particular, the
general demurrer being TO the effect
that the complaint did not state facts
sufficient to constitute public Of
Tense. He explained that the article
giving the news of the conference with
Burke at which Mccarthy was present
did not charge Mccarthy with the
commission OF a crime or with any,
thing that would tend TO bring him
into disgrace or disrepute with his
neighbors.
NOTHING To SHOW STING
Bacon further explained that as the
article was not libelous on its face it
would be necessary. in order TO make
a statement Of an indictable offense, to
plead the peculiar state of facts TO
which the article referred and the con-
clusions to be drawn from these facts.
This. Bacon argued. the Mccarthy COM
plant did not do. There was nothing
10 show the sting of the article or to
indicate that il was published will
fully and maliciously.
I submit" said Bacon. that we are
not told whether Mr.. Mccarthy Judges
himself TO be libeled by the fact that
lle went up to see Jere Burke. If Jere
Burke is so VIGOROUSLY bad and it has
come 10 such pass that the court can
take judicial notice of the fact that
going TO see Jere Burke would bring
a man into disrepute in this community
we would acknowledge that Il is an
ofense; but the supreme court of this
state has never adjudicated as a fact
that II is disreputable TO be seen in
Jere Burke's Office"
Bacon, in pointing out technical
flaws, showed that the complaint did
not allege that there existed a union
labor party or that Mccarthy belonged
10 IL. He called attention to the use
OF the term republican machine" ask
ing in what way the court was to know
whether il meant an ambulance or an
automobile or a pink tea society
The complaining witness in this
case" Bacon declared, could not prove
that there was a union labor party
because he does not allege it. He could
not prove that there was an organfza-
tion within the republican party. be-
cause he does not alleze it."
We submit" said Bacon in conclu-
sion, that the complaint is bad on the
general demurrer. and It is also bad
in each of the particulars that we have
mentioned and described with respect
to Indebtedness and uncertainty"
WHAT Is REPUBLICAN MACHINEe
In rebuttal Attorney Dam declared
that the complaint had stated indi-
rectly that Mccarthy did not attend
the conference in question, and that
the libel consisted in the statement
that Mccarthy had gone to the meeting
10 sell out the union labor party. He
insisted that the term republican ma
chine" was sufficiently well known.
is II matter OF which the court
can take judicial cognizanceg' de-
manded the Judge.
The court can take judicial notice
OF what is called the sack in politics,
returned Dam There is a decision RI
that effect"
My objection is" explained Bacon
that you don't say that there is such