The general purpose of the measures dealing with Grand Juries was to make those bodies purely accusatory, to make their findings conclusive and not subject to attack. The basis of the proposed amendments and additions to the laws governing Grand Juries was that Grand Juries are primarily required to investigate secret offenses, and should be regarded as purely accusatory bodies. On this theory the Commonwealth Club bills made the indictment of a Grand Jury as binding as the action of a committing magistrate who holds a defendant to answer. Had the Commonwealth Club bills become laws there would have been no more placing of Grand Jurors on trial for having found indictments against persons able to employ crafty criminal lawyers.

But lest the defendant under investigation might be wronged, the Commonwealth Club measures so amended the codes that a Grand Juror in any way biased against the defendant was required to absent himself from the Grand Jury room when the defendant's case was under consideration.

Under the proposed laws each Grand Juror was required to take oath "not to partic.i.p.ate in the inquiry as to any matter or affecting any person as to which or whom he is biased or could not vote freely either way that the evidence presented would in justice require him to vote."

The Commonwealth Club amendments regarding trial juries dealt with the problem in the same broad spirit. The chief object sought was to avoid the trying of citizens called for jury service[73]. The proposed laws obviated this by leaving it with the Judge to determine the qualifications of the juror, that is to say, the examination of jurors in criminal cases was to have been taken out of the hands of the lawyers and required of the Judge. To compensate the defendant for whatever substantial disadvantage he might suffer, the number of his peremptory challenges was materially increased.

To prevent the setting aside of judgments on trifling technicalities, the proposed amendments provided that the Judge should fix the legality of the jury panel by general order, after which challenges could not apply to the whole panel, although they still held as to individual jurors.

One of the most important of the provisions regarding trial jurors was that the reading of mere newspaper reports of a case should not disqualify a trial juror, unless it were shown that the newspaper article purported to be a true copy of the official testimony.

The fact that under the present law the term "reasonable doubt" is not given legal definition paves the way for frequent miscarriages of justice. The Judge is required to define the term for the jury. The defendant may take exception to the definition, thus paving the way for technical defense in the upper Courts. The Commonwealth Club bills defined "reasonable doubt" to be, "that state of the case which, after the entire comparison and consideration of all the evidence in the cause, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge."

Amendments were also proposed to the law governing instructions to juries. Under the present rule, each side presents a long list of instructions for the Judge to give to the jury. If the Judge refuse to give the instructions as requested, objections to his refusal can be taken and made basis for a technical defense[73a]. Under the proposed amendments objection could be made only to such instructions as were given, not to those which were not presented to the jury.

In none of those proposed amendments could the substantial rights of the defendant be said to be encroached upon. But the proposed laws did clear away a ma.s.s of technicalities which has kept many a scamp out of jail.

The proposed amendments dealing with appeals in criminal cases aimed at prompt judgment and sentence after conviction, prompt appeal and conclusion of the case.

To this end, the measures provided that upon conviction the defendant must be sentenced forthwith, and if appeals were taken, taken on the judgment. Instead of the c.u.mbersome bill of exceptions, which required weeks and sometimes months to prepare, it was provided that the entire testimony given at the trial, together with the complete minutes of the proceedings, should be sent to the higher tribunal. This would place before the Appellate and Supreme Courts all the facts and testimony which the Lower Court had considered. This feature of the Commonwealth Club bills was also covered by the measures which had been prepared by the Bar a.s.sociation.

Under the proposed Commonwealth Club amendments, the defendant was not permitted to appeal on questions referring to the trial jury panels or the Grand jury, nor on any error not affecting his substantial rights.

Error in an immaterial issue, or of not sufficient importance to affect the substantial rights of the defendant, was not, under the provisions of the Commonwealth Club bills, to be held ground for reversal.

"We believe," said the Committee which drew up the Commonwealth Club bills, "that what we have proposed is in no way revolutionary and deprives the accused person of no substantial right. The amendments proposed are merely designed to make the present law more effective, to relieve the Courts from the necessity of considering trivial matters and to aid in determining more promptly whether a person accused of crime is innocent or guilty."

The bills as introduced in the a.s.sembly were referred to the a.s.sembly Judiciary Committee. In the Senate, the bills went to the Senate Judiciary Committee.

The promoters of the Commonwealth Club bills made the mistake of treating the machine Senators and a.s.semblymen as men who could be won over with reason and plain statement. Instead of fighting for their bills and demanding their pa.s.sage, the agents of the club were willing to listen courteously to suggestions from tricksters intent upon the defeat of the measures, who were only playing for time.

Carroll Cook was at Sacramento lobbying against the bills, as were others of that gentleman's view of affairs. Cook actually appeared before the a.s.sembly Judiciary Committee on invitation of one of its members. The courtesy shown him by Grove L. Johnson, chairman of the Committee, was touching or nauseating, as one might view it. Johnson, who was in effect the Committee, took occasion on the day of Cook's appearance to denounce the measures as revolutionary, unconst.i.tutional, vicious.

It is interesting to note that sixty-three of the sixty-five bills as introduced in the a.s.sembly never got beyond Johnson's Committee. They died right there. The two exceptions got out of the Committee in the closing days of the session, one on March 10th, the other on March 20th.

They were reported out with the recommendation that they do pa.s.s. It was then too late to take any action on them. They died on the a.s.sembly file.

Those who were making a fight for the measures were kept running between the Judiciary Committee of the a.s.sembly and that of the Senate. The Senate Committee, while a majority of its members were against the machine, was led by men who were not at all in sympathy with any plan that was calculated to clear away legal cobwebs. On the pretext that the reforms proposed were covered by the Bar a.s.sociation bills, or that the measures were duplicated by other bills, or that they were loosely drawn, on any pretext, in fact, the Senate Committee recommended that fifty-two of the sixty-five measures be withdrawn. And they were withdrawn. Of the thirteen remaining, seven stuck in the Committee, died there; five, just before the session closed, were referred back to the Senate with the recommendation that they do not pa.s.s. They didn't. Of the sixty-five bills, the Senate Committee gave only one favorable recommendation. This lone recipient of Committee approval got back to the Senate on March 5th. It died on the files.

Such was the fate of the measures prepared under the direction of the Commonwealth Club for reform of the methods of indictment, trial and appeal in criminal cases. The Bar a.s.sociation bills received somewhat better treatment.

Of the nine so-called Bar a.s.sociation bills, eight pa.s.sed the Senate; the other died in the Senate Judiciary Committee. Of the eight which got through the Senate, two were defeated in the a.s.sembly, while six pa.s.sed that body and went to the Governor.

Four of the six Bar a.s.sociation bills which pa.s.sed dealt with the repeal of those sections of the code which provide for bills of exceptions in criminal cases and subst.i.tuted the plan, described in considering the Commonwealth Club bills, of providing the higher Court with complete record of the testimony and the proceedings in the trial Court.

One of the two remaining measures requires sentence to be imposed upon a convicted felon in not less than two nor more than five days after the verdict or plea of guilty, with the right reserved for the Court of extending the time to ten days. The sixth measure defines "a motion in arrest of judgment."

Such was the outcome of the effort made by reputable lawyers and public spirited laymen to eliminate quackery from the practice of the criminal law. But measures calculated to make the practice of the criminal law even more involved and technical than it is were granted more consideration. Many of them pa.s.sed both houses. How they were pa.s.sed and what they are will be considered in another chapter.

[72] No sooner had the indictments been returned in the San Francisco cases than the validity of the indicting Grand Jury was attacked. For months that issue occupied the attention of the Courts. One by one the members of the Grand Jury were dragged into Court, and in effect placed on trial that technical disqualification if such existed might be established. The greater part of a day was, for example, consumed in thrashing over the question whether one or three motions had been made in nominating the stenographer to the Grand Jury.

Then came appeals to the higher Courts which occupied more months and all but endless labor and expense.

When the attacks on the Grand Jury had been met and disposed of, and the defendants brought to the trial Court, the Prosecution found its labors scarcely begun. Every trial juror was placed on trial. Weeks and even months were required, because of technical objections, to secure a trial jury.

Just before the Legislature convened, Abe Ruef, had, as example, been convicted by a jury in the securing of which the metropolis of the State had been raked as with a fine-tooth comb for talesmen who were not technically disqualified to serve. Thousands were available who would have given the defendant a fair trial, but in all San Francisco very few could be found who were not because of one technical reason or another disqualified.

After conviction came the defendant's appeal, in which the Most trivial reasons were accepted for freeing the defendant whose technical defense had failed him in the lower Courts. Former Mayor Schmitz of San Francisco, after conviction of extortion, and Abe Ruef, after having pleaded guilty to the charge, were given their freedom under circ.u.mstances which, to put it mildly, shocked the whole State.

[73] A prominent San Francisco attorney told the writer recently that "the criminal lawyer too often questions a talesman needlessly, not so much to disqualify him, as to get technical error into the record."

[73a] It was on a technicality of this kind that the District Court of Appeals found excuse for reversal of the judgment in the case of Louis Gla.s.s, convicted of bribing a member of the San Francis...o...b..ard of Supervisors. E. J. Zimmer, the auditor of the Pacific States Telephone Company, of which Gla.s.s was an official, refused to testify at Gla.s.s'

trial. The trial court refused to instruct the jury to disregard the refusal. The Appellate Court held this to be a fatal error.

Chapter XVI.

How the Change of Venue Bill Was Pa.s.sed.

Slipped Through the a.s.sembly Without Serious Opposition in Closing Days of the Session - Pa.s.sed by Trick in the Senate Although a Majority of That Body Were Opposed to Its Pa.s.sage - Typical Case of Machine "Generalship."

Given the presiding officers of the Senate and a.s.sembly and the appointment of the Committees of both bodies, the machine minority in the Legislature had comparatively little difficulty in preventing the pa.s.sage of desirable measures. Thus, the Commonwealth Club bills to simplify and expedite proceedings in criminal cases, or, if you like, to prevent quackery in the practice of the criminal law, were, by clever manipulation, defeated, although if fairly presented to Senate and a.s.sembly they undoubtedly would have become laws[74].

But when it came to pa.s.sing vicious measures in the face of the opposition of the unorganized majority of both Houses, the machine had a harder job on its hands. A majority vote of each House is required for the pa.s.sage of a measure. To get through its bills, then, the machine had to create a situation in which vicious measures could be rushed through without the unorganized reformers knowing what was being done.

By preventing action on a large majority of the measures pending before the Legislature until the end of the session, such a situation was created. In the confusion of the closing days of the session, not only were good bills denied pa.s.sage, but vicious bills, in spite of the opposition of a majority of the Legislature, were pa.s.sed. Some normally anti-machine members in such a situation become worn out, get discouraged and vote for machine policies to secure machine support for measures, the pa.s.sage of which their const.i.tuents at home are demanding.

Others, in the confusion of a whirlwind close of the session, vote for measures which they have no time to read, and which they cannot understand. Thus, even with a majority of Senate and a.s.sembly against machine policies, the clever machine leaders often slip through measures which could not be pa.s.sed early in the session, when the members have opportunity to study the bills upon which they are called upon to act, and before the ranks of the reform element have been broken.

This was very well ill.u.s.trated at the Session of 1909 by the pa.s.sage of the so-called Change of Venue bill[74a]. This measure was introduced in the a.s.sembly by Grove L. Johnson. Under its provisions a person charged with crime would have been permitted upon his whim or caprice to allege bias and disqualify the Judge before whom he was to be tried. The Legislature of 1907 was admittedly controlled by the machine, but even the Legislature of 1907 did not dare pa.s.s the Change of Venue bill. The reform Legislature of 1909, however, did pa.s.s it. The manner in which it was pa.s.sed is a lesson in machine methods. To the credit of Governor Gillett let it be said, however, that he vetoed the measure[75].

Grove L. Johnson having introduced the bill, it was referred to Johnson's committee, the Judiciary Committee of the a.s.sembly. The Committee held it until February 5, when it was referred back to the a.s.sembly with the recommendation that it "do pa.s.s." On March 13, eleven days before adjournment, it pa.s.sed the a.s.sembly, by a vote of 42 to 15, 41 votes being required for its pa.s.sage. a.s.semblymen like Drew, Telfer, Wilson and Stuckenbruck, men who fought the machine and machine policies from the beginning to the end of the session, voted for the bill. The negative vote of any two of them would have defeated it[76].

The pa.s.sage in the a.s.sembly of an important reform measure as late as March 13, would have meant its defeat in the Senate. Though in the majority the anti-machine Senators could not have forced a reform measure through the machine-controlled committees, machine-controlled even when a majority of a committee was anti-machine[77]. Measures of the Change of Venue bill stamp, however, had a clear way. The Change of Venue bill was on March 15 referred to the Senate Judiciary Committee.

On March 16, twenty-four hours after, the Committee returned the bill with the recommendation that it do pa.s.s. On March 19, with twenty-two Senators opposed to its pa.s.sage, and eighteen favoring it, with twenty-one votes necessary for its pa.s.sage, the bill pa.s.sed the Senate.

This apparently impossible feat was, in the last two weeks of the session, a comparatively easy task for the machine.

To begin with, Senator Black, who opposed the bill, was ill at his home at Palo Alto. This left twenty-one Senators against the measure and eighteen for. The line-up was as follows:

For the Change of Venue bill - Anthony, Bates, Bills, Finn, Hare, Hartman, Hurd, Leavitt, Martinelli, McCartney, Price, Reily, Savage, Weed, Welch, Willis, Wolfe, Wright - 18.

Against the Change of Venue bill - Bell, Birdsall, Boynton, Burnett[76a], Caminetti, Campbell, Cartwright, Curtin, Cutten, Estudillo, Holohan, Lewis, Kennedy, Miller, Roseberry, Rush, Sanford, Stetson, Strobridge, Thompson, Walker - 21.

On the face of it, the outlook for the pa.s.sage of the Change of Venue bill in the Senate was not good. The machine, however, planned to pa.s.s the bill on March 19.

The machine leaders went at the job systematically. When the Senators took their seats that Friday morning, they found that at Senator Bates'

request, a.s.sembly Bill 6 (the Change of Venue bill) had been put on the Special Urgency File. The Special Urgency File was to be considered at 8 o'clock Friday evening. Senator Bates stated in an interview that he had placed a.s.sembly Bill No. 6 on the Special Urgency File "at the request of a fellow Senator." Who the fellow Senator was, Bates refused to say.

Bates insisted, however, that he knew nothing about a.s.sembly Bill No, 6, and could give no reason why it should be made a matter of "special urgency." Senator Bates has since the Legislature adjourned been given a position of trust in the United States Mint.