The San Francisco call., 1910-05-28
WARREN PORTER
EXCEEDS rights
Acting Governor Is Rebuked for
Ordering Lees Release
on Bail
Fact So Apparent in Law That
Justice Cooper Cuts Short
the Arguments

An emphatic rebuke to Lieutenant
Governor Warren Porter for his guber-
Material zeal in the case of DR.. Benja-
min B. Lee, convicted of the man
slaughter of Thomas Mccarthy, whom
he ordered released on bail was admin
istered by Justice Cooper of the district
court of appeal yesterday, when the
justice held that Porter had acted in
excess of his powers. He commanded
the sheriff to take charge of Lee and
hold him in the county jail.
"yICIOUs INFLUENCES.
This case, when before Judge Frank
III. Dunno of the superior court Thurs
day, drew from the latter some caustic
remarks when he learned that Porter
had granted a reprieve. He declared
that the proceedings had been marked
by vicious interferences and influ-
ences." which ultimately stretched to
the chair OF the acting governor of the
state.
Lee was convicted of nanslaughter
and sentenced to 10 years in San Quen-
tin for the killing of Thomas Mccarthy
in Fillmore street in 1907. He appealed
his case, was defeated in the district
court of appeal and then carried it to
the supreme court, which refused TO
grant a rehearing. On the decision OF
the supreme court Lees bond of $4,000
was discharged and he was taken into
custody by the sheriff. simultaneously
with this action his lawyers appealed
to Porter, who granted a reprieve of
80 days. including in his order the
rather unique provision that the de-
fendant be admitted to his original bail.
RELEASE REFUSED
Acting District Attorney McNutt, who
is handling the case, made an inme-
diate protest. holding that Porter had
no right to order prisoners out on bail
On his advice the sheriff refused to re-
lease Lee and the defendant instituted
habeas corpus proceedings, basing his
plea for the writ on Porters stay of
execution. The case came UP before
Justice Cooper yesterday and the
courts views on the matter were evil
dent from the outset.
There is no need to continue the
argument on that point any longer" he
said to Assistant District Attorney Cot
ton, who dealt with the action taken by
Porter. There is no doubt that the
governor has no power to order pris-
oners released on bail
ARGUMENTS CUT OFF
AS Porter's order was the mainstay
of the argument Justice. Cooper put a
summary ending to the arguments Of
Lees counsel by dismissing the writ
and ordering the sheriff to hold Lee in
the county jail pending the conclusion
of the stay of execution. If his appli-
cation for pardon. is not granted by
that time he will have to go to San
Quentin.
While Justice Cooper made no state
ments in court. his summary disposal
of Porter is regarded as being one of
the most pointed rebukes ever admin
istered by the judicial to the executive
power of this state. The sensation of
it was aceentuated by the fact that,
from the inception, the case has been
a bitterly fought one and at one time
a common belief was that Lee, on ac
count of his wealth and political
friends, would succeed in escaping from
the charge sooner or later.
Relied on Hart
Especial Dispatch TO The Call
SACRAMENTO, May 27.-Acting Gov
ernor Warren Porter says he does not
care to get into any alteration with
Superior Judge Frank Dunno of San
Francisco over the reprieving of DR..
Benjamin Lee, but is willing to make
an explanation for his action by stat
ing that he reprieved Lee at the request
of former Attorney General Hart.
81 have known Hart for a good many
years and relied solely on his state
ment," said Porter today. General
Hart said he needed little more time
to gather certain evidence or docu-
ments or something of that sort
Not being a lawyer, I do not know
just what the legal phase to 1t was,
but, having full confidence in General
Hart, L. granted his request, seeing it
would do no harm to anybody.