The Detroit times., 1911-10-16
WILL DECIDE IMPORTANT
/ POINT IN M'NAMARA CASE
Judge Bordwell To Say Whether
Political Amendment Shall
Affect Prisoner.

| LOS ANGELES. Cal, Oct. IA
That a political amendment. forced
through the legislature or California
for the benefit OF the railroad machine
which for years controlled the des-
TIMES OF this state, will prove an enor-
nous factor In the makeup OF the
jury, which will pass on the guilt or
innocence OF James B. Mcnamara,
was admitted by both sides In the
case today.
| When Judge Bordwell reserved his
decision on the application OF the de-
tense 10 remove from the jury box
for cause Venireman Nelson, he made
II plain TO both sides that an interpre-
tation OF the qualification clauses OF
the penal code, enacted by the legis-
lature TO rescind the common law pro-
vision was extremely dlfiicult, but that
his decision would lay down an abso-
lutte law which both sides must OBJ
serve.
The common law unqualinedly as
serts that a person having an opin-
ion which II would require evidence
to remove is not qualified TO serve on
a jury. Because OF this fact suits by
railroads were held up many times In
California courts. Finally the big bus
mess interests combined and forced
through the legislature seemingly
harmless provision which declared
that when a venireman, admitting an
opinion, also said he was willing TO
waive such an opinion, he was quail
fed for jury service.
This Is the crux of the entire sit
uation James b. Mcnamara Is facing
today. Judge Bordwell, after listen
ing most OF yesterday and until al
journment today to arguments OF coun-
sci for both sides will declare his In
depreciation OF the penal code proyi-
sion which seemingly supercedes the
common law, defining for both sides
how far they may go in demanding
the elimination OF veniremen for
cause.
II the statute forbidding the defense
to challenge veniremen like Nelson
is upheld Attorney Darrow, for the de-
tense, admitted today that the defense
would be compelled TO utilize Its en-
tire twenty peremptory challenges for
cause "and then take what's left and
trust to God"
1--WE may not be able to enforce
even the ordinary provision OF the
law" he added, which presumes a
man innocent when arrested, carries
the presumption OF innocence through
the trial and only leaves II when the
jury retires and begins to decide just
what the preponderance OF evidence
directs. Machine-made laws for the
salvation Of the dollars OF corpora
tons might cost the life OF an inno-
cent man"
Cyrus McNutt. scathingly arraigned
the legislative emasculation OF the
common law. McNutt insisted that
Judge Bordwell realizes that the state
ment OF venireman Nelson that he
had an opinion as to McNamara's guilt
and also that he believed the Los An
geles Times had been dynamited,
could only mean that Mcnamara
would have no chance should Nelson
remain in the box.
The district-attorney and his assis-
tants spoke bitterly, declaring the de-
Tense was straining at gnat and swal-
lowing camel. They demanded that
the court override the defense's chal
lenge OF Venireman Nelson for cause
and rule that all veniremen who say
In court that they are willing to aban-
don any opinion they may have form
ed, are qualified to serve as jurors.
Deputy District-Attorney Horton ap-
pealed to Judge Bordwell and said:
ut must be presumed that Cali
fornia judges are honest unless other
wise proven. They are the only ar
biters OF the question whether a jur-
or Is prejudiced. II an individual says
juror is prejudiced, we must not ac-
cept that statement as gospel The
that he thought the Times was dyna-
that he thought he Times was dyna-
mited does not affect Mcnamara, for
IL the defense should prove an alibi,
then II will be impossible to connect
Mcnamara with the case. II might
possibly have been some person con-
nected with. the Times"
Attorney barrow was indignant at
this statement. He declared Nelson
was already on record as having de-
clared the Times was dynamited In a
felonious manner and thus he was
prejudiced against Mcnamara, wheth-
er the defendant proved an alibi or
not.
Horton questioned the good faith Of
the defense In quizzing Nelson and de-
clared the attorneys were taking ad-
vantage OF complicated language to
involve a supplemented individual.
Attorneys for the defense today
angrily denounced the action of the
state In bringing an employe OF the
Times, Billy Brown, into court dur
ing a session. Mcnamara was pointed
out TO Brown, who was asked wheth-
err he was the same individual Brown
had seen near the Times building,
during the night before the explosion.
Brown was seated at the prosecution
table like an attorney where he could
get a good look at Mcnamara and
observe his characteristics. The de-
tense attorneys conferred today as
to how to Illustrate such methods.
aAr