The Birmingham age-herald., 1911-10-14
Proceedings in McNamara Case Are Very De
 liberate
NELSON CHALLENGED
 BY THE DEFENSE
Provision of California Law Which Differs From United States Con
 stitution Precipitates Lengthy Argument

three days Of court sessions in the tr1ai of James E. McNamara for the murder of Charles J. Haggerty, a victim Of the Los Angeles Times building explosion and fire. October 1, 1910, no juror had been selected even tentatively tonight, and no decision had. been reached as to the eligibility of the first talesfnan examined. Although court proceedings moved for ward without interruption, the magni- tude of the questions involved in the ex- animation of z. T. Nelson, first tales man, made proceedings deliberate. At sunset when court adjourned argu- ments on Nelson's status remained untn- ishcd
 At the close of court Sheriff William Hammell and deputy escorted the pris- oner unmanacled from the hall of rec. ords through the adjoining courthouse corridor and across the narrow street, where his brother, John J. McNamara, is confined awaiting his turn for trial.
 X provision of the constitution of the vtate differing somewhat from the consti- tuition of the United States, sections of the penal code regarding the qualifca- ton of jurors being brought up, and a
  Nclson's examination, combined to fur. nish points of contest which affect not alone the talesnan under examination, hut every prospective juror, and for this reason were stubbornly contested on the ground of relevancy.
 The sombre courtroom scene where op- rcsing counsel argued for every point of vantage in the struggle over mans life was relieved once or twioe by touches of unconscious humor which seemed to ap-. peal to the court.
 Once, when G. Ray Horton, a boyish looking attorney, who single handed made. the long afternoons argument for the state, assured the court that he was not intending to swing an effigy of error to terrify your honor,s Judge BordwellI smiled broadly
 No. mo-" he said. He seemed to enjoy the situation. a one of the cases cited by Horton, FnowIng the law regarding eligibility. of talesman was that of Juror Arthur in the trial of Abraham Ruef, now serving a II year sentence in San Quentin penitentiary for bribery in the so-called San Francisco graft case.
 Another case cited was the famous one of "Redskirt" Gordon. who, with hand of fellow convicts, fought his way out of Folsom peniten,iary in sentational break for freedom.
 The constitution of Caifonia guar antees fair trial for all persons in litigation whereas that of the United States guarantees such rights to the defendant.
 The penal code of the state under an act of the legislature was intended, Horton declared, according to the new .Y.I. t.xt tsr.4,. fta serve on juries and allow any one to do so under restrictions when they are not of a state of mind not preventing prejudice 10 the substantial rights of either party. apparently.
 On these two propositions Attorney Horton based his argument contending. first that the rights of the state must be preserved as scrupulously as those of the defendant. and further that the criminal code made express provision for jury service for a man of Nelsons frame of mind.
 Interrupted in a declaration that Nell son had declared he was without bias toward the defendant, Attorney Horton remarked that if the record showed other than he alleged 1t was because the talesman had confused the de- fendants own case with his expressed opinion that the Times building was blown up with dynamite.
 
 Joseph Scott of counsel for the defense quoted Nelson as saying he had an opinion concerning McNamara's guilt or innocense; that he had held such opinion for months, and that it would I take strong evidence to dislodge it. Judge Bordwell announced he would go over the record on this point. Attorney Clarence s. Darrow, chief of counsel for the defense, made an argument against Nelson being accept cd after being challenged OH grounds of bias. at "No section of the criminal code can change q mans constitutional rights. was his opening statement. "A defend ant must be tried by jury, not by a ratification meeting. Never before have I seen an officer of the state asking the defense to take juror who has sworn that he has held an opinion for months as to the defendants guilt or innocence and that it would take strong evidence to remove that opin- ion.' sThe legislature in enacting the penal codes," added the attorney, "thought perhaps to take away some of inc safeguards that surroundu life." He then remarked: 5s.fess
 II presume we could convince the states attorney here if we get proof enough"
 He said ruling adverse to the con tentfOn GeSdFulnB I>elSou WOQlu pG COH- eidered grounds for appeal to Wash ington and 1t was upon this point that Lawyer Horton in his address sub- consciously reassured the; court. F+
 No court of appeals,'r he said, "wouId ever undertake te investigata such case unless there was great ground -
 q do not think the court cares to consider the possible action of a court of review" interposed Judge Bord- well.
 All counsel seemed to agree.
 While Attorney Horton was making his argument Mir. Darrow walked upl and down the scanty third of the court room allowed to judge, defendant, jury and counsel, his hands behind him. seeming to pay close attention
 Mr. McNamara throughout the aft ernoon sat against the rail. clasping lis kneess with, his hands and looking steadily Ut hls counsel.
 A two hours session will be hpd 10 morrow.
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 Appian Way Discussed
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