The San Francisco call., 1909-06-04
MCCARTHY CALLED
TO PROVE LIBEL
Judge ShOrtaII OverruIes De-
murrer to Complaint Against
Statements In The Call
Labor Union Candidate for
Mayor Denies Having Attend
ed Conference With Burke


Police Judge Shortsu yesterday over
ruled the demurrer TO the complaint
Of p. p. Mccarthy charging the pro-
prietor. general manager and manag-
ing editor OF The Call with criminal
libel and in MS capacity of committing
magistrate began hearing the testi-
mony on which Mccarthy expects to
have the defendants held for trial in
the superior court
P. H Mccarthy, the complaining wit
ness. as well as Michael Casey. COM
missioner Of public works, and County
Clerk Harry l. Mulcrevy. swore that
they had not attended the conference,
Q The news Of which. published in The
call is The basis for McCarthy's COM
plant
Walter O'ConneIl. business agent OF
the building trades council and a men,
her OF the conference committee which
selected Mccarthy as the union labor
candidate for mayor. testified TO the
Interpretation which an ordinary news
paper reader would place upon the al
legged iibelous article.
WITNESSES ARE ABSENT
Mccarthy expected to call two other
witnesses at the session in the police
d. court yesterday afternoon-Jere Burke
the chief lieutenant of Political Boss
Herrin, and state Senator Thomas F.
Finn. the two who were named as
having attended the conference with
Mccarthy. Casey and Mulcrevy. Burke
begged on on the score OF important
business, while Finn failed 70 obey the
subpoena. Both are expected 70 take
the stand when the hearing is re-
sumed AZ o'clock this afternoon
In Overruling the demurrer inter
posed by Attorney Walter Bacon for
the defendants. Judge ShortaII declared
that he recognized some OF the defects
pointed out by counsel. but considered
that IL covered the ground sufficiently.
CASEY SEEMS AMUSED
The reading OF the alleged IibeIous
article by Attorney Bacon il the course
n his argument Afforded Michael Casey
= great deal OF amusement. He smiled
and smiled. and when he heard him
self described as the creature of
reform administration" ne shook with
quiet laughter. Mccarthy took the
matter more seriously. deigning 10
smile only a. rare intervals.
Bacon pointed out that Attorney
Dam. representing Mccarthy. did not
seer 70 understand the pleading neces-
Ssry in = case OF libel He argued
that the article complained Of was not
lfbeious .on its face. and that. under
section $50 OF the penal code. exposi-
tion Of the libelous matter was neces-
sary.
OBJECTION TO COMPLAINT
This complaint he said. is open to
the serious objection that IL has an
fnnuendo without an adequate state
ment Of facts
Bacon declared that il was not IL
belous 70 state that a combination be-
tween the republican machine and the
union labor party had been attempted,
unless il could be proved that the re-
publican machine was in bad odor.
and also that IL would be discreditable
10 affiliate with it. he pointed out
that there was nothing IN the com
plant covering this vital matter.
There are. no facts stated he said;
only 2 conclusion, and I submit that
we can not 90 10 trial on conclu-
sion"
Bacon showed that owing TO the de-
fective drawing Of the complaint, in so
far as = sufficient -inducement" was
concerned, II would be necessary Tor
the complaining witness 10 prove the
fnnuendo. and he cited authorities to
show that n innuendo IS not sUscep
tfble of proof
PLEADING HELD SUFFIC lent
When Judge ShortaIl held that the
charge Of libel was based on the state
nent that Mccarthy had been a party
70 4 conference with an agent OF the
republican machine, Bacon called at
tentfon 10 the fact that the complaint
contained nothing which would indi-
ate that the combination sought for
IN this conference would have been
bad thing
FOR an We are allowed 10 learn
from this complaint" declared Bacon,
there is nothing TO show that such q
combination would not have been the
best thing in the world for Mccarthy
and the union labor party. Elections
are commonly won by such combins-
tions.~
DAM QUOTES DICTIONARY
At this point Judge Shortall admit
ted that the pleading might have been
much better, but added that ne
thought IL sufficient
Attorney Dam commenced his rebut-
TAI BY reading Websters definition of
the word plot" a term which was
used in the headlines of the article.
He started out TO show that Mccarthy
had practically been called a conspir-
stor. when Judge Shortsll interrupted
him for the purpose Of overruling the
GeElAINrt
Both parties expressing their desire
10 20 ahead with the hearing Of wit
nesses. John ". Burrows. cashier Of
The Call. was called 10 the stand. Bur-
rows testimony was needed 10 prove
the publication Of the alleged libelous
article but Attorney Bacon objected to
the line OF questions put by Dam II
was finally agreed that exceptions
should be noted TO all questions deemed
objectionable by the defense and that
the answers should be admitted. sub
iect 10 the right TO strike out later on
MCCARTHY DENIES INrERVIEW
Mccarthy took the stand TO deny
TAT he had been present at the con-
rrence described in The Call as hav-
nz occurred OF May 10. Then Casey
,-as called He admitted that he knew
sere Burke. but declared that he knew
sfeCsrthy was not present at the con-
-erence alluded 10 because he himself
I'D not been there After Casey had
.ntangled this peculiar logic. Mulcrevy
ailowed. also admitting that he knew
5cre Burke. but denying that he had
attended the conference in question.
walter O'Connell. business agent OF
fhe building trades council. was the
last witness. Called TO explain the