The San Francisco call., 1909-04-20
PROSECUTION.
SCORES IN HOT
LEGAL CONTEST
Attempt by CaIhoun's Lawyers
to Impeach Former Super
visor Nicholas Is Failure
Relying on Technical Quibble,
Attorneys for Defense Make
Desperate but Futile Effort

fSAS alone upon an attack against CIT
camstantial evidence as defense TO
the charge Ior which he is on trial
There undoubtedly viii be made a de-
tense or this character but there will
Ice coupled with II an attempt 10 i'm
peach the testimony OF former Super
visor Ferd P. Nicholas, and so to un-
ds-niae The very foundation OF the
case.
Yesterdays proceedings brought the
theory Of the defense clearly to the
surface. and around lhis pivotal point
% whether OF not Nicholas was telling
fhe absolute truth in his sworn testi-
nsoav. there reyoive6 the first grest
hattie o. the trial. The outcome Of
the fight was a techi,icai victory for
the prosecution, for il resulted in the
admission CT testimony which the de-
fense made strenuous endeavor TO
keep out or the record. At the same
time single question. precisely pre-
sented remains for the consideration
OF the jury Has Nicholas told the
truth or has he perjured himself in
saying that he was offered $4,000 by
JaInes l. Gallagher 10 vote in favor
Of lse United Railroads trolley fran
cnise.
EFFORT TO TMPEACH NICHOLAS
The efort. OF Calhoun's attorneys 70
discrelit Nicholas followed yesterday
along the lines Of defense sketcheG
last Friday during the cross examine
tiou OF the witness. II was then called
10 the attention Of the jury BY Earl
Rogers o. Calhouns legal stan that in
his testimony in the Glass trial Nicho-
las had said he was not sure whether
he had ever spoken to Gallagher about
the bribe prior to the time the money
was paid 10 him. The indictment on
which Calhoun is being tried does not
charge him with giving d bribe TO
A-lloias, but with Offering him q bribe
50 tie record OF the Glass case was
Unearthed TO discredit Nicholas by draw
ing q comparison between his testimony
Il that time and his sworn statement
uncer direct examination in the present
trial that Gallagher had spoken to him
about the money before the trolley
franchise was passed.
Rogers method OF impeachment was
q vicious one. Without making any
open charges he called attention to the
conviction Of Michael W. Coffey. the
witness who forfeited his immunity by
-e%-NF Cdl4l4S Al the GldSS case, ana
iusinuated that Nicholas had been in
duced 10 perjure himself in the pres
ent case through fear that he would
also meet such z fate unless his testi-
mony was Of exactly the nature de-
sired by the prosecution
TECHNICAL Plight By DEFENSE
To Offset the inference which might
be drawn from this showing by the de-
tense Of slight discrepancy between
the testimony given by Nicholas at the
former trial and that given by him in
the present instance, the redirect ex-
animation OF the witness was begun
yesterday morning with the object in
view OF introducing other records to
disprOve the contention raised by the
defense. Here was where the fight
came in. Every legal technicality and
every power Of oratorical persuasion
was brought TO bear to prevent the
introduction OF rebuttal evidence.
VICTORY FOR PROSECUTION
In the end the prosecution won. Miss
i. H. Condor, the stenographer who
took shorthand reports of Nicholas
original confession at the Gladstone
apartments and of his later confession
before the grand jury was allowed TO
Identify the records containing those
statements and TO read their contents
into the record Of the present case.
In short, the attempted impeachment
failed woefully. The prosecution proved
that in both these early statements.
made in answer TO different questioners
and but two days apart. Nicholas re-
cited precisely the same story. He said,
On both those occasions. as he has
said in the present trial. that Gallagher
met him two days before the vote was
taken on the trolley permit and told
him there would be $4,000 in il for
him II he would vote in favor Of tne
overhead trolley ordinance
Francis J. Heney, in the course of his
argument on the question Of introduc-
ing the records. made the point that
both the statement at the Gladstone
apartments and that before the grand
5ury were made long prior to the time
that Coffey got himself in trouble By
trying to play favorites on two sides
Of the case. The testimony given on
both these first occasions corresponds
exactly with that given by Nicholas o.
ms direct and cross examinations T.
the present case, and against it there
stands only the transcript of his testi-
mony in the Glass trial, in which he
expressed himself as uncertain whether
Gallagher had or had not spoken to
him prior TO the passage Of the trolley
ordinance The witness explained the
discrepancy by declaring that he had
A1A SS%AC4l l-4N 0tAdllS OF IlG occurrence
when he gave his testimony in the
Glass case, but that the memory Of the
circumstances surrounding IL had been
recalled TO his mind
An IMPORTANT ISSUE
So the question Of Nicholas veracitv
stands. It IS important for the very
reason that the indictment on which
Calhoun is being charged accuses him
of an offer 10 bribe. Heney himself
admitted that could the defense prove
fsat Nicholas had fabricated his testi-
fay in order 70 save himself from
sseeusioE. Calhoun would be entitled
IN acquittal in the present trial.
So against the single statement in
ta9 Glass trial that he was not sure
whether he had been spoken to by
Gallagher, there stands Nicholas test.
lnony on two former occasions when
there was nothing of fear to infu nee
his declarations, that Gallagher ia
speak TO him. and those two for ..er
bits Of testimony are exactly the Sane
as that he has given in the pres sc
case.
So the whole result of the battle that
hes been wsgcd during the cross ano
redirect examinations of Nicholas -
that the jury must decide whether the
witness told the truth on three oc-
s.asiors or whether the doubt he ex-
I'll = T.