CHAPTER VII.

OLIVER GRAND JURY IMPANELED.

The hard fight of the morning of October 26th to prevent Ruef taking

possession of the District Attorney's office had been carried on

practically without the general public being aware of the proceedings.

Langdon had been suspended early in the evening of the previous day. The

temporary order restraining Ruef from interfering with the District

Attorney had been signed at 5 o'clock in the morning. The general public

found by the morning papers that Ruef had attempted to seize the office,

but of the steps taken to stay his hand the papers had nothing. The

question on every man's lip was: Will Judge Graham recognize Ruef or

Langdon as District Attorney at the impaneling of the Grand Jury?

The court was to meet at 2 o'clock. Long before that hour arrived, the

halls of Temple Israel, a Jewish synagogue in which several departments

of the Superior Court met during the months following the great fire,

were packed with citizens. The street in front of the building soon

became jammed with a struggling mass of men demanding entrance. The

crowd became so great that none could enter or leave the building.

Plain-clothes men were on all sides, and succeeded in clearing a space

about the entrance. The work of clearing the building of all who could

not show that they had business there, then began. In this work,

deference was shown Ruef's adherents. Notorious saloon-keepers,

ex-prize fighters and strong-arm men friendly to Ruef were permitted to

remain. Opponents of the administration who protested against removal

were unceremoniously thrown out.

Although little groups of partisans of the administration appeared in

the crowd, the citizens assembled were in the main clearly in sympathy

with the prosecution.[103] The arrival of Langdon, Heney and Spreckels

was signal for outbursts of applause. Ruef apparently appreciated the

feeling against him. He appeared guarded by two detectives of the

regular police department,[104] and a body-guard of partisans. The crowd

began to press about him. Several of his followers made motions as

though to draw revolvers. Ruef hurried into the building. To add to the

confusion, there was, planned or without planning, misunderstanding as

to the room in which the hearing was to be held. The representatives of

District Attorney Langdon's office finding themselves misinformed as to

the meeting place, forced their way from hall to hall seeking reliable

information. When the room was finally located, it was found to be

packed with Ruef followers. The sheriff ordered the doors closed. The

Court's attention was called to this. District Attorney Langdon insisted

that the doors be opened and the crowd permitted to enter to the

capacity of the room. He pointed out that some had been admitted and

others kept out, and insisted there should be no discrimination. This

course was taken. The crowd poured in until every available foot of

standing room was occupied.[105]

Eighteen of the nineteen citizens required under the California law for

Grand Jury service had already been drawn at former sessions of the

court. As soon as order had been secured, the name of the nineteenth was

taken from the jury box.

This detail over, Heney called the Court's attention to the provision of

the California law, that no person whose name does not appear on the

assessment roll of the county in which he serves is eligible for Grand

Jury service, and that the courts have held further, that bias or

prejudice of a Grand Juror against a person indicted is sufficient

grounds for setting aside the indictment. Heney then stated that he

wished to examine the nineteen men as to their qualifications as Grand

Jurors.

Ruef, announcing himself as an officer of the court, arose to speak.

Heney objected to Ruef appearing, if by officer of the court he meant

District Attorney or Acting District Attorney. Ruef answered that he

appeared only in his capacity as member of the bar. On this showing he

was allowed to proceed.

Ruef contended that the procedure proposed by Heney was irregular; that

if followed the validity of the Grand Jury would be imperiled. He stated

that he did not want to see the Grand Jury made an illegal body.

Heney replied that he intended, as Assistant District Attorney, to

present felony charges against Ruef, and desired to examine the

prospective Grand Jurors as to their bias for or against Ruef.

Furthermore, Heney insisted, the Court had authority to excuse a juror

if he were not on the assessment roll. To accept as Grand Jurors men

whose names were not on the assessment roll, or men biased or prejudiced

against Ruef would, Heney insisted, make the proceedings a farce.[106]

In reply to Heney, Ruef defied him to produce any evidence "in open

court before an untutored Grand Jury for an indictment." Ruef charged

Heney further with employing abuse "to make the Grand Jury illegal so

that nothing might come of any indictment."

At this point, the Attorney General of the State, U. S. Webb,[107]

addressed the Court. At his suggestion the Grand Jurors were excused

for the day. General Webb then stated that he knew of no law for the

procedure which Mr. Heney suggested. He admitted, however, that such

procedure would be desirable, and advised that no hasty action be taken

in coming to a decision.

Heney in reply read from California decisions to show that The People

have the authority to make examination of Grand Jurors, and continued:

"The only question remaining is as to when this examination shall be

made. Suppose the foreman of the Grand Jury is biased or prejudiced.

Does it require any argument that now is the time to make this

examination instead of waiting until we have presented our evidence to

the Grand Jury? Shall we first have to give those whom we accuse time to

bribe witnesses and get them out of the country? Shall we let the

defendant come in and quash the indictment, if there is any bias or

prejudice, and then be enabled to protect himself against prosecution?

"After the miserable fiasco (the attempted removal of Langdon) which

occurred last night," Heney went on, "what more important duty for this

Court to perform than to say immediately that the law is more powerful

than any man or any set of men in San Francisco?"

As Heney concluded, the packed courtroom burst into applause. The crowd

outside heard, took it up and cheered wildly. As soon as order was

restored, Henry Ach, one of the attorneys appearing for Ruef, suggested

that Heney, the Attorney General and himself, get together to present

the question of whether Langdon or Ruef were District Attorney to the

Supreme Court. Ach stated that he feared if Langdon or Heney attended a

session of the Grand Jury and Ruef were to be found to be District

Attorney, then the acts of the Grand Jury might be invalidated.

Heney replied that in acting as prosecutor it had been his rule "to have

no conferences, treaties or alliances with persons charged with crime,

or with their attorneys." On this ground, Heney declined Mr. Ach's

proposition.

Judge Graham made no rulings that day on any of the points raised, but

ordered a continuance until the following Monday.

After adjournment of court, the appearance of Langdon and Heney at the

entrance of the building brought forth cheers from the crowd that all

through the proceedings had waited outside. A speech was demanded of

Langdon.

"My friends," he replied, "we have no speeches to make. We have a duty

to perform and we will perform that duty."

Immediately behind Langdon came Ruef, closely guarded by police and

detectives. He was pale and worn and clearly frightened. The crowd

pressed about him. Threats came from his followers to shoot into the

crowd if it pressed too closely. Ruef finally reached his automobile and

was driven away.[108]

The topic of discussion of the two days that elapsed before Judge Graham

decided the questions that had been raised by Heney's proposal to

proceed with the examination of the Grand Jurors, was whether Graham

would allow such examination. It was alleged that no less than four of

the citizens drawn for Grand Jury service were not on the assessment

roll. There were, too, charges that Ruef controlled several of them.

Some of the papers printed the names of those whom it was alleged were

either under obligations to Ruef or connected with his political

organization.

A second crowd filled courtroom, building and street when Judge Graham's

court was called to order the following Monday. Mounted policemen,

plain-clothes men and detectives, directed by two captains of police,

were, however, on hand to preserve order.[109] There were no

demonstrations. Judge Graham announced from the bench that after due

deliberation, he had concluded that the District Attorney had the right

to interrogate the Grand Jurors as to their qualifications. He stated

further that inasmuch as Langdon was the de facto District Attorney,

Langdon would conduct the examination.

The prosecution had won the first skirmish in the years-long fight upon

which San Francisco was entering for the enforcement of the law.

The next move came from Attorney Samuel M. Shortridge. Shortridge

appeared with Ruef's attorney, Henry Ach, and Marshall B. Woodworth.

Ruef had named Woodworth, it will be remembered, as Heney's successor in

the District Attorney's office.

Mr. Shortridge read Acting Mayor Gallagher's order suspending Langdon

and appointing Ruef, and also called the Court's attention to the fact

that Ruef had filed his official bond as District Attorney. Shortridge

stated that the matter was pending before Judge Seawell, and asked the

Court, "in deference to Judge Seawell," to postpone proceedings until

the District-Attorney controversy should be decided. Shortridge

expressed himself as fearful that, if the examination of the Grand

Jurors went on, Judge Seawell's decision might invalidate the Grand Jury

proceedings.

W. T. Baggett, Assistant City Attorney,[110] followed Shortridge. Mr.

Baggett read a letter from the Acting Mayor, setting forth the fact of

Langdon's removal, and joined with Shortridge in pleading for delay. But

the pleas of both gentlemen were denied. Judge Graham repeated his

opinion given earlier in the day that Langdon should be recognized as

the de facto District Attorney, and ordered the impaneling of the Grand

Jury to continue.

Shortridge thereupon announced his desire to participate in the

examination of the Grand Jurors. Heney objected to Shortridge appearing

as a representative of the District Attorney's office. Shortridge

replied that he respected Judge Seawell's order, and had no intention of

violating it. He asked if he would be permitted to act in the capacity

of amicus curiƦ[111] in examining jurors. This privilege was accorded

him.

The examination of the Grand Jurors occupied more than a week. Several

of the nineteen were excused, it being found that their names were not

on the assessment roll.

The examination was concluded[112] on November 7th and the Grand Jurors

sworn. B. P. Oliver was appointed foreman. From him the body received

its name of Oliver Grand Jury. The Grand Jury organized by electing C.

G. Burnett secretary. But one important question remained to be decided,

namely--Was Ruef or Langdon to represent The People at the investigation

into graft charges which the Grand Jury was ready to begin?

FOOTNOTES:

[103] The San Francisco Chronicle in its issue of October 27 thus

described the crowd: "Every man the police put out of the

building was cheered by the crowd and every time policemen

laid hands on anyone they were hissed. However, it was evident

that the citizens who gathered outside the Temple Israel

yesterday afternoon did not come prepared to fight with the

police force. In the crowd standing outside almost every man

prominent in the business and professional life of the city

could be seen. Manufacturers, merchants, lawyers, doctors, men

engaged in all the various lines of wholesale and retail

business, and all the professions, included among the latter

being many Protestant ministers, Catholic priests and Jewish

rabbis. Here and there in the great concourse of people were

scattered little groups of men of the type that may be seen

hanging around the tenderloin."

[104] Detectives Steve Bunner and Tim Riordan. These men accompanied

Ruef for nearly a month. Late in November, after Ruef had been

indicted, they were sent back to active duty.

[105] While the crowd was pressing into the room, a deputy sheriff

undertook to search Heney for concealed weapons. Heney

complained of the officer's conduct, protested vigorously.

"That is the man standing there," cried Heney, "he did so at

the request of Abe Ruef."

"Who was informed that Mr. Heney was armed," responded Ruef.

It developed that Heney was not armed, and the incident went

no further. But it indicated the sharpness of the division

between the two factions.

[106] The Chronicle of October 27, 1906, contains the following

account of Heney's reply to Ruef: "'I now announce to the

court,' said Heney fervently, 'that I intend as Assistant

District Attorney, to present charges of felony and

misdemeanor against Abraham Ruef, and I desire to examine the

members of this panel to determine if any member entertains

bias or prejudice for or against Abraham Ruef in the matter of

the charges which are to be presented by the District

Attorney's office. I understand that there is no question as

to Abraham Ruef's right to have the indictment set aside if

any member of the Grand Jury is biased or prejudiced against

him. It would be a farce,' Heney went on, his voice swelling,

'it would be adding to the comedy of errors enacted last night

(the attempted removal of Langdon from office), if we have a

Grand Jury which is biased or prejudiced. It has become public

through the newspapers--to some extent, at least--that Abraham

Ruef is to be investigated. The People have the same right as

the defendant to examine the members of the panel as to their

qualifications. I know that a number of the members do not

possess the qualifications provided by the statute, as they

are not on the assessment roll, and I desire to question them

on that point. The Court has the right to excuse a juror if he

is not on the assessment roll. The Supreme Court has decided

that a man has the right to be investigated by a Grand Jury of

nineteen men who are qualified according to the statute and

none others. It is not necessary to take for grand jurors the

nineteen whose names are first drawn from the box. We should

examine them, so that a member who has a bias or prejudice as

to a particular person may be instructed that he shall not

participate in the investigation of that person.'"

[107] Under the California law, the Attorney-General may at his

discretion, take the prosecution of a criminal case out of the

hands of a District Attorney. It was within General Webb's

province to have taken charge of the San Francisco graft

trials. In a statement given wide publicity at the time,

General Webb stated that he had no intention of taking charge

of the graft trials unless Ruef succeeded in seizing the

District Attorney's office. Long after, however, Heney, in an

affidavit filed in the case of The People vs. Patrick Calhoun,

Thornwell Mullally, Tirey L. Ford, William M. Abbott, Abraham

Ruef and Eugene E. Schmitz, No. 823, set forth a statement

made to him by Ruef when Ruef was pleading for immunity, in

which Webb's presence at the impaneling of the Grand Jury was

touched upon as follows:

"Ruef said in reply in substance, 'You are prejudiced against

me, Heney, ever since we had that quarrel during last

election. You know that the public-service corporations are

responsible for the conditions which exist in San Francisco

and that I can help you send some of the officials of those

corporations to the penitentiary, and I can also help you to

clean up this city and make it impossible for corruption to

get a foothold here again for a long time. You are afraid to

trust me, but you are making a mistake. The moment it becomes

known that I have gone over to the prosecution the most

powerful influences in this State will all be arrayed against

us, and particularly against me. The moment you attack Pat

Calhoun you in fact attack Herrin. You don't know the relation

between these parties and the corporation as well as I do. I

am very fond of Tirey Ford, but I don't care a rap about Pat

Calhoun, and would just as soon testify against him as not.

But the moment it becomes known that I am ready to do so my

life will no longer be safe. I will have to stick to the

prosecution from the moment I start in with it. You don't know

what desperate means these people are capable of resorting to.

My life will not be safe. If they keep me in the county jail

with O'Neil as Sheriff they will kill me to a certainty. You

don't know how many influential people are involved in this

thing. You and Burns think you know, but there are a lot of

people whom you don't know anything about who are mixed up in

it. I tell you that the combined influence of all these people

will make it next to impossible to secure convictions, and

will make it very dangerous for all of us. It will not do to

lessen the weight of my testimony any by having me plead

guilty in that extortion case. Besides that, the Court would

not allow me bail after I had pleaded guilty, and the Supreme

Court may knock out the elisor, and then I would be absolutely

in the hands of the other people, and they would surely kill

me. Sheriff O'Neil is loyal to me now, but the moment he knew

I was going to testify against Schmitz he would be very bitter

against me, and would do whatever those people wanted him to

do. Moreover, Herrin will get Attorney-General Webb to come

down and take these cases out of the hands of Langdon and

yourself, and he will declare the immunity contract off upon

the ground that the District Attorney has no power to make one

and will prosecute me on some of the bribery cases now pending

against me, and if they convict me Herrin will see to it that

I am not pardoned by the Governor. He now controls the

Governor and the chances are he will continue to name the

Governor and control him for the next twenty years. Webb was a

deputy in Ford's office when Ford was Attorney-General, and it

was Ford who got him to come down here and 'butt in' at the

time you were impaneling the Grand Jury. I know you fellows

thought it was I who got him to come down here, but as a

matter of fact I did not know any more about it than you did

until he appeared there, and I am sure it was Ford who did

it."

[108] While Ruef was struggling through the crowd to reach his

automobile Dr. Shadwick O. Beasley, Instructor in Anatomy at

the Cooper Medical College, was assaulted by some unidentified

person. Dr. Beasley turned, shook his fist at Ruef and hissed

him. The doctor was immediately placed under arrest. Dr.

Beasley, on his part, swore out a warrant charging an unknown

deputy sheriff with battery. Beasley was then made subject of

petty persecution. He was, for example, held up on the street

by a deputy sheriff and charged with carrying a concealed

weapon. He was searched by two men, but nothing more deadly

than a case of surgical instruments was found upon him. Dr.

Beasley complained bitterly of the rough treatment from the

officers.

The San Francisco Chronicle, in its issue of October 27, 1906,

thus describes the scene which followed Ruef's appearance

before the crowd:

"With fists and clubs Chief of Police Dinan and his squad from

the Central Police Station fought off the crowd of angry

citizens assembled about the Temple Israel who sought to lay

violent hands on Abe Ruef when the curly-headed usurper of the

functions of the municipal government was leaving the scene of

the Grand Jury meeting yesterday afternoon. And in the wake of

the police were the Ruef heelers from the tenderloin with

their hands on their pistols, threatening to shoot down the

citizens of the city of San Francisco who should dare to

approach too near the sacred person of their tenderloin idol.

"It was one of the most remarkable scenes ever witnessed in

any city of this country. Stung with the outrageous assumption

of the powers of the public prosecutor when he was about to be

placed on trial himself for crime, the citizens of the city,

among whom are names that stand highest in business and

professional circles, sought to make him realize the impudence

of his conduct. That he escaped a swift punishment for his

arrogant seizure of the office of the District Attorney is

solely due to the presence and strenuous efforts of the

police."

[109] In sending his officers to handle this crowd, Chief of Police

Dinan gave the following instructions:

"The captains, sergeants and officers so detailed are

instructed that they are sent to the place designated for the

purpose of doing strict police duty. They will see that the

streets and sidewalks are not obstructed, and that no

violations of the law are permitted."

[110] Under the San Francisco municipal charter, the District

Attorney has charge of criminal cases, and the City Attorney

of civil cases in which the city is concerned. The City

Attorney also acts as adviser to the Mayor and Board of

Supervisors. The two are independent offices.

[111] Shortridge stated that as amicus curiae, it was his duty to

see that the proceedings were without flaw. Heney refused to

take him seriously, however, referred to him facetiously as

the "curious friend of the Court." and suggested that the

Court unassisted might be able to determine what was competent

evidence.

[112] The following nineteen citizens composed the Grand Jury that

conducted the investigation of San Francisco "graft" charges:

E. J. Gallagher, photographic supply dealer; Frank A. Dwyer,

real estate; Herman H. Young, baker and restaurant proprietor;

Mendle Rothenburg, liquor dealer; James E. Gordon, merchant;

Alfred Greenebaum, merchant; Wallace Wise, haberdasher;

Jeremiah Deasy, insurance agent; Rudolph Mohr, brewer; C. G.

Burnett, capitalist; Charles Sonntag, merchant; Morris A.

Levingston, liquor dealer; B. P. Oliver, real estate; W. P.

Redington, druggist; Christian P. Rode, drayman; Ansel C.

Robinson, merchant; Dewey Coffin, real estate; F. G. Sanborn,

law book publisher; Maurice Block, merchant.

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