The San Francisco call., 1910-03-23
AGED PHYSICIAN
MUST FACE TRIAL
Motion to Quash Indictments
Against DIR. Burke Over
ruled by Court
Case Expected to Be Placed
in the Jury's Hands Some
Time in May

SANTA ROSA, March 22.-Following z
two days hearing on the motion to
quash the two indictments against DIR.
owner, Judge Seawell this afternoon
overruled the motion. Immediately aft
erward court was adjourned until 10
o'clock tomorrow when Doctor Burke
will formally plead to the indictments
and the trial will be set.
Doctor Burke is charged with dyna-
hitting PENTHOUSE in which Lou Eta
Smith was sleeping with her IL month
old child. The second Indictment
charges. the aged physician with illegal
surgical practices. He received the
courts ruling on the motion to quash
very calmly and the decision generally
developed little surprise as the
grounds set for the motion were pure
ly technical
According to counsel for both sides
Doctor Burke probably will not be
brought to trial before the middle of
May
1t has been intimated that the de-
fense is holding a point in reserve and
in case they are forced TO go to trial
will use it to have any adverse verdict
SGT dSioc ny the COui INC
names of two of the grand jurors do
not appear upon the last assessment
roll for state and county purposes and
this, 1t is claimed, will fnvalidate the
indictments. Such decisions prevail In
eastern courts. but the only decision In
this state was by the appellate court
in the San Francisco graft cases and
was against the contention.
Doctor Burke is represented by
Hiram w Johnson candidate for the
republican gubernatorial nomination
on the Lincoln Roosevelt party ticket.
and J. Rollo Leppo of this city. Dis
trict Attorney Clarence F. Lea is con-
Quoting the case for the prosecution.
aided by G. w. Hoyle. his assistant.
Eight members of the indicting
grand jury We're called as witnesses
for the defense in today's proceedings.
They were interrogated regarding their
state of mind toward Doctor Burke
following their impeachment and prior
to their investigation of the Burke
case. All testified in substance that
they were not prejudiced in any way
against the defendant.
When the defense closed District At
torney Lea took the stand to testify to
the validity of the indictments.
Johnson then addressed the court, it
being understood that his argument
would apply not only TO the explosion
indictment on the motion to quash. but
also to the defense's demurrer to that
charge. The crowd remained to hear
his argument. His address was con-
cerned almost entirely with the con-
tention that the PENTHOUSE in which
the explosion occurred was not clearly
located and described in the indictment.
When Johnson closed the district at
torney declared that he would submit
the prosecutions case without argu-
ment as the indictment charged injury
to a person and not TO property
Judge Seawell then announced that
he would set aside the motion to quash.
but that as he desired time to consider
the argument on the demurrer he
would adjourn court until tomorrow.
Leppo will address the court tomor-
row on the defense's demurrer to the
second indictment charging illegal sur
gical practice.
Mrs. Burke occupied a seat outside
the rail.