THE DEFENSE BECOMES ARROGANT.
The prosecution's reverses in the Appellate and the Supreme Courts were
followed by startling changes of policy on the part of the defendants.
The officials of public service corporations, who by every technical
device within the ingenuity of the best legal talent that could be
purchased, had for months resisted trial, suddenly became clamorous for
their trials to begin. Abe Ruef, who had been counted, by the public at
least, as friendly to the prosecution, openly broke with the District
Attorney and his associates.
President Calhoun of the United Railroads, who had been in the East,
returned to San Francisco demanding trial. The San Francisco Examiner,
now openly opposing the prosecution, announced this new move to be a
bomb-shell thrown in the prosecution's camp. Nevertheless, The Examiner
could not entirely conceal the astonishment caused by the defense's new
policy.
"Just what has brought about this change in Calhoun's attitude," said
the Examiner in its issue of January 28, 1908, "was not explained
yesterday. Tactics of evasion, motions of obstruction, and every other
artifice known to legal legerdemain to stay proceedings have heretofore
been the accepted etiquette of the graft defendants, and conspicuously
that of Patrick Calhoun."
The Call, supporting the prosecution, boldly charged that the graft
defendants were in treaty with Ruef.[356] And this view the District
Attorney's office was finally forced to accept.
No sooner had the decision of the Appellate Court been made public than
Ruef clamored for dismissal of the extortion charge to which he had
plead guilty, but which the higher court had decided in the Schmitz case
did not constitute a public offense. In this Ruef was backed by Rabbis
Nieto and Kaplan.
Ruef, after the Schmitz-Ruef officials had been swept out of office, had
been confined in the county jail. From the day of his jail imprisonment
the two Rabbis besought the District Attorney day and night[357] not to
force the broken boss to remain behind the bars.[358]
Langdon, not having decided at the time to appeal from the Appellate
Court decision to the Supreme Court, finally yielded to the
importunities of the two clergy-men and stated to Judge Dunne that Ruef
wanted to make a motion to withdraw his plea of guilty in the extortion
case. Judge Dunne replied that he would not consider such motion.[359]
This closed the incident so far as dismissal of the case before the
Supreme Court could pass upon it, was concerned. But it did not stop
Ruef's insistence that not only should he be allowed to withdraw his
plea of guilty, but that he be given complete immunity from prosecution
of all the charges against him.
Langdon, even before he had spoken to Judge Dunne about permitting Ruef
to withdraw his plea, had become convinced, as Heney had become
convinced long before, that Ruef was not playing fair with the
prosecution. Ruef, when confronted with charges of holding back
evidence, shifted and evaded, until Langdon, losing patience, charged
him with falsehood.
About the middle of January, evidence came into Langdon's
possession[360] which convinced him beyond a shadow of a doubt that
Ruef, instead of observing the immunity contract, was, as a matter of
fact, dealing with and assisting his co-defendants, advising them of
every move.
Langdon[361] at once called Ruef before him and notified him that the
immunity contract was canceled.[362]
The abrogation of the immunity contract brought open break between Ruef
and the prosecution. Ruef set up claim that under his immunity contract
all the graft cases were to be dismissed against him, including that
under which he had plead guilty to extortion. He insisted that he had
lived up to his part of the agreement and charged that the prosecution
was breaking faith.
In this position, Ruef was backed up by Rabbis Kaplan and Nieto, who for
months had been clamorously active in his behalf. Indeed, long before
the open breach had come, so persistent had the Rabbis become in their
insistence that Ruef be released, that Heney had found it necessary to
request Kaplan to remain away from his office.[363] When Ruef finally
broke with the prosecution, the two Rabbis were to the fore backing up
his contention that the prosecution was not keeping faith with him.[364]
Kaplan soon after filed an affidavit setting forth that under the
agreement with the prosecution, Ruef was to have had complete immunity,
and be allowed to withdraw his plea of guilty in the extortion case.
Later on, Nieto, "Ruef's diplomatic middle man," as he was called, filed
an affidavit to the same effect. Ruef, on his part, filed a voluminous
affidavit, purporting to cover all his transactions with the
prosecution, in which he not only set up the claim that he was to have
been given complete immunity but alleged that Langdon, Heney and Burns,
were guilty of subornation of perjury in having endeavored to get him to
swear falsely against Schmitz and Ford.
Rabbis Kaplan and Nieto, in their affidavits gave versions of the
meetings with Judges Dunne and Lawlor, when the Judges stated their
confidence in the District Attorney and his assistants, which differed
from the accounts contained in the affidavit of Heney and the
judges.[365] This brought the trial judges as well as the assistant
prosecuting attorney into the controversy.
The members of the Grand Jury that had indicted the graft defendants had
already had their trials in open court;[366] petit jurors and witnesses
had, in effect, been on trial also. And now District Attorney and trial
judges were placed on their defense.[367]
Other graft defendants joined in the upholding of Ruef and the
denunciation of the prosecution. Adverse newspapers joined in the cry of
unfairness and hinted at worse. The story became current that no appeal
would be made from the Appellate Court's decision in the Schmitz case to
the Supreme Court. Another story had it that the prosecution was
breaking down, that the situation had become so complicated that no
other trials could be had.[368]
On the other hand, the outcry did not in the least shake the faith of
the citizens who were insisting upon the crushing out of corruption at
the State's metropolis. Colonel Harris Weinstock, one of the largest
merchants of the State, in a ringing address condemned the efforts made
to discredit the prosecution.[369] The same position was taken in
pulpit, club room and street discussion. From all parts of the State
resolutions and memorials were sent the prosecution approving and
upholding its work.[370] And doggedly the prosecution proceeded to
justify the expressions of confidence in its singleness of purpose and
in its ability to cope with the tremendous odds brought against it.
The immediate indictments about which the controversy raised by Ruef's
claim for immunity centered were those in the United Railroad cases. The
prosecution accordingly went before the Grand Jury then sitting--the
Oliver Grand Jury which had brought the original indictments had long
since adjourned--and secured three indictments against Ruef, Calhoun and
Ford for the bribery of three Supervisors, Furey, Nicholas and Coleman.
In these indictments every technical error which the ingenuity of the
defense had brought out was eliminated. The new indictments were not
secured because the prosecution regarded the objections as having merit,
but that the District Attorney's office might be prepared to meet any
emergency which might arise.[371]
The next step was to bring Ruef to trial. The prosecution selected the
indictment under which Ruef had been brought to bar for offering a bribe
to Supervisor Jennings Phillips to vote for the Parkside street railroad
franchise.[372]
Prospect of immediate trial made a different man of Ruef. He was at once
seized with the panic which had come upon him when the jury had been
completed to try him on the extortion charge. He begged for time. He
insisted that he was without counsel. He asked for three weeks, a week,
even two days.[373]
Then came an entirely new technical defense based upon the immunity
contract. Ruef alleged that he had been deprived of his constitutional
rights as a defendant, by following the set program outlined in the
contract. But here Ruef had over-reached himself. He had on January 31
entered a plea of not guilty in the Parkside case, the case on trial.
The District Attorney had abrogated the immunity contract thirteen days
before, on January 18. Whatever technical advantage Ruef may have had
because of the immunity contract was forfeited by his plea of not
guilty after its annulment.
His attorney gravely contended, however, that Ruef--one of the shrewdest
practitioners at the San Francisco bar--was without legal counsel when
he had entered his plea, and that he had therefore innocently foregone
his constitutional rights. This contention provoked a smile even from
Ruef's partisans. The point was not urged further.
Seeing that trial could not be warded off on technicalities, Ruef
endeavored to disqualify Judge Dunne, the trial judge. But this move
proved premature. Judge Dunne was about to go on his vacation and Judge
Dooling,[374] a Superior Court Judge from the interior, was called to
sit in Judge Dunne's stead. Ruef thereupon proceeded to disqualify Judge
Dooling. He alleged that Judge Dooling, as Grand President of the Native
Sons of the Golden West, had signed an order expelling him (Ruef) from
the order; he alleged further that Judge Dooling had attacked him in a
speech at a banquet.
Judge Dooling, placed on trial as Judges Lawlor and Dunne had been, was
forced to make defense. He denied in affidavits that he had ever
specially mentioned Ruef's name in any speech, but admitted that he
might have said that any man guilty of crime should be expelled from the
Native Sons order.
Ruef went to the Appellate Court for a writ of prohibition to prevent
Judge Dooling trying the case. The Appellate Court denied his petition.
Then Ruef went to the Supreme Court. Here again his prayer was denied.
Thus, protesting as vigorously as a cat pulled over a carpet by the
tail, was Ruef for a second time dragged to trial. The work of securing
a jury to try him began.
Gradually, the jury box filled. But before it was completed there
occurred an incident of the prosecution even more startling than the
sending of cash books out of the State, the trailing of members of the
prosecution by agents of the defense,[375] the disappearance of
witnesses, the larceny of the prosecution's records, or the attempted
kidnaping of Witness Lonergan and Editor Older.
On the eve of taking testimony in the Ruef case an attempt was made to
murder James L. Gallagher by dynamiting his residence. Gallagher was the
pivotal witness against Ruef, as well as against Ford, then on trial.
In the Ruef case, Gallagher had taken word from Ruef to the Supervisors
that there would be $750--later increased to $1000--for each of them if
they granted the Parkside franchise. Without Gallagher's testimony the
case against Ruef would fall flat.
General Ford's third trial was then in progress and well advanced. Here
again, Gallagher was the pivotal witness. He had taken the trolley bribe
money from Ruef to the Supervisors. He supplied the link between those
who had been bribed, and Ruef. His testimony was indispensable if Ruef
and Ford--then on trial--were to be convicted. His testimony was equally
necessary in the cases against Calhoun, Drum, in fact all the graft
defendants, except those who had dealt directly with the Supervisors.
The evening of the day following Gallagher's testimony in the Ford case,
but before he appeared at the Ruef trial, dynamite was exploded at the
front doors of the house in which he was residing. The dynamite had been
placed next to the dining room. Gallagher was at the time living at the
home of W. H. H. Schenck at Oakland.
So violent was the explosion that the house, a frame building, was split
in twain. A pillar from the porch was thrown 150 feet. In the building
on the adjoining premises, every window was broken. The family had just
completed the evening meal and a number of them were still seated around
the table. The table was split from end to end. At the moment of the
explosion, one of those in the house was showing a curious watch guard
and had the watch in his hand. The watch stopped, thus fixing the exact
time of the explosion, 7:30 P. M.
There were in the house at the time of the explosion, W. H. H. Schenck
and wife, and three children, the youngest seven years old; Lieutenant
Guy Brown of the National Guard; and Gallagher and his wife. Every one
in the building was thrown down by the force of the explosion, but
extraordinary to say, none of them was seriously injured. Gallagher and
his wife were in an upper room of the building. The stairway was
demolished, and Gallagher was obliged to lower his wife to the ground,
getting down himself the best way he could.
A month later three buildings in Oakland belonging to Gallagher were
destroyed by dynamite. Soon after this second explosion a young Greek,
John Claudianes, was arrested and charged with the outrage.
Claudianes made full confession, involving his brother Peter as
principal. Peter Claudianes was finally captured at Chicago. On his
return to San Francisco he confessed,[376] stating that he had been
employed by a Greek, one Felix Pauduveris,[377] to murder Gallagher.
Felix Pauduveris fled the city and the police of the world have been
unable to locate him. Peter Claudianes was convicted of the attempt upon
Gallagher's life, was sentenced to prison for life, and at present
writing is confined in San Quentin prison.[378]
Quite as extraordinary as the attempted assassination of Gallagher was
the indifference with which the outrage was received by the press that
was supporting the graft defense.[379] The Chronicle condemned the
outrage, but took occasion to denounce Gallagher.[380] The weekly
press, however, treated the affair as something of a joke on the
confessed bribe-taker.[381]
In the face of the ridicule of the graft-defense press, the dynamiting
of witnesses, and the continent-wide hunt for the dynamiters, the Ruef
trial went steadily on.
One incident of the beginning of the trial, because of the event that
grew out of it, eventually proved even more important than the trial
itself.
During the examination of jurors, an ex-convict, one Morris Haas, was
discovered to have been sworn to try the case. Heney exposed him and he
was excused from service.[382] The incident, compared with the other
tremendous happenings of the time, was of small importance, but it was
destined to lead to the greatest outrage of all the history of the
prosecution, the shooting down of Assistant District Attorney Heney in
open court. But for the time, Haas passed out of the graft cases and was
forgotten.
The Ruef trial was not unlike the Ford trials. The courtroom was packed
with detectives, agents and thugs employed by the various graft
defendants.[383] There was the same hesitancy on the part of witnesses.
At one stage of the proceedings Ach, Ruef's chief of counsel, sneered
that the State was having trouble with its own witness.
"Yes," replied Heney, "The People have no witness--no volunteer
witnesses. We merely produce them."
When J. E. Green, president of the Parkside Company, who had authorized
the payments to Ruef, refused to testify on the ground that he might
incriminate himself, it looked as though the case was going against the
prosecution. But Heney met this objection. He promptly moved the
dismissal of the fourteen indictments pending against Green.[384] Ach
objected, but the motion was granted. Green was left free to testify.
Green testified how he had sent his attorney,[385] Judge Walter C. Cope,
to Ruef to find out what Ruef was after. Ruef wanted $50,000 to put the
franchise through. Green testified that Ruef finally agreed to take
$30,000, and was actually paid $15,000 on account.
G. H. Umbsen testified to having received $30,000 from the Parkside
Company for Ruef and had paid Ruef $15,000, the balance being held until
the deal should be consummated. In addition to this, the sorry
manner[386] in which the company's books had been juggled to cover up
the transaction was shown by witnesses connected with the Parkside
Company.
Ruef's intimation through his attorney that the money had been paid as a
fee was offset by testimony that the books had been juggled to cover up
the payment to Ruef because Ruef was the political boss of the city, and
it was believed that it would do the company no good if the fact of his
employment were known.
Gallagher testified that he had been Ruef's representative on the board;
that Ruef had told him that the Parkside franchise was to be held up and
delayed; that later Ruef had stated that each Supervisor would receive
$750 because of the Parkside deal; that finally, after the fire, Ruef
had told witness that the Parkside people wanted the franchise in a new
form, and that the $750 to each Supervisor would be increased to $1,000;
that he (Gallagher) had conveyed this information to the Supervisors.
Supervisors testified to having been given the information by
Gallagher.
Ruef offered no testimony. The jury was out forty-three hours. By a vote
of 6 to 6 the jury failed to agree. Again a graft trial had ended in
discouraging failure for the prosecution.[387]
After the disagreement of the jury in the Ruef Parkside case, to judge
from most of the San Francisco public prints of the time, the
prosecution was utterly discredited in San Francisco. But there is a
surer means of estimating public opinion--namely, by the votes of the
people.
Much of the graft defense's abuse and vilification was heaped upon
Judges Lawlor and Dunne, who had stood firmly for enforcement of the law
regardless of who might be affected. Judge Dunne's term as Superior
Judge was to expire in 1909. He was, at the November election of 1908, a
candidate for re-election.
Judge Dunne was frankly fought by the graft defense, and supported by
those who approved the work of the prosecution. The Republican county
convention refused to nominate him, and hissed his name. The Union Labor
party convention received his name with a turmoil of hoots and jeers. A
letter to the last-named convention from the Good Government League
urging his nomination was thrown into the waste-paper basket.
On the other hand, when given opportunity for expression The People gave
Judge Dunne encouraging endorsement. The Good Government League
proceeded to have his name put on the ballot by petition. For the
petition 1,765 signatures were required. Over 3,000 persons signed it
the first day. The press--outside San Francisco--following the graft
trials closely, was practically a unit in urging Judge Dunne's return to
the bench.[388] And in spite of the costly contest of his election, The
People of San Francisco re-elected Judge Dunne.
Thus again were the contentions of the graft defense repudiated at the
polls.
Another important endorsement of the prosecution came from the Board of
Supervisors. The Supervisors provided in their annual budget $70,000 to
meet the extraordinary expenditures because of the graft cases. Burns
and the men who had theretofore been paid out of the fund controlled by
Rudolph Spreckels, became regular municipal employees operating under
the District Attorney.
The criticism of the defense had been that it was shameful that a
privately-financed prosecution should be tolerated. Their cry now was at
the shame of wasting the public funds on Burns and his staff. Action was
instituted, through William H. Metson, to prevent the municipal
officials paying Burns and his associates out of this fund. For months
the salaries of those affected were held up. Although eventually the
opposition to the prosecution lost in the contest, and the men were paid
the amounts due them, the suit was an annoyance and a handicap.
But in spite of the tremendous opposition which the graft defense was
working up, the prosecution went steadily on with its work. Ruef was put
to trial for offering a bribe to Supervisor Furey to vote for the permit
giving the United Railroads its overhead trolley franchise.
FOOTNOTES:
[356] When Calhoun returned to San Francisco demanding immediate
trial, the Examiner announced that he "threw a bombshell into
the camp of the prosecution." The Call, however, dealt with
the incident as follows:
"Patrick Calhoun has come back in a hurry, shouting for an
immediate trial. He is certain that he has the prosecution on
the hip. His men are in treaty with Ruef. His organs in the
press, the Examiner, the Chronicle and the gutter weeklies,
begin to see Ruef in a wholly new light. Three weeks ago Ruef
was the vilest criminal. No immunity for him. Indeed,
immunity, in the lexicon of the Calhoun press, was then a
worse crime than bribery or graft. It is very different now
that the new alliance between Ruef and the bribe givers is in
process of negotiation. Ruef has at once become the persecuted
sufferer, the victim of a heartless cabal, pushing one more
unfortunate to his ruin and positively 'rushing' him to trial
with indecent haste, with no lawyers but Henry Ach to hire. It
is too bad.
"Why this astonishing and sudden change of front? It is simply
that Calhoun has made up his mind that this is the time for
grafters and boodlers and bribe givers to stand together. He
has persuaded himself that the prosecution is dazed by the
extraordinary decision of the Court of Appeals, and that the
same has put Ruef in a receptive mood for a treaty of alliance,
offensive and defensive, among all varieties of boodlers,
franchise grabbers, bribe givers and bribe takers. Calhoun
knows that Ruef on trial or before trial is a very different
person from Ruef after conviction. He wants to keep Ruef in his
present state of mind. Of course, he knows that he can not
trust Ruef. No man who has had dealings with the shifty boss
knows on what side he will turn up next. At present Ruef lends
a responsive ear to Calhoun's overtures. Consultations are held
without disguise between Calhoun's lawyers and Ruef. It is time
for Ruef and Calhoun to stand together. The association is
suggestive but natural."
[357] The graft prisoners unquestionably suffered greatly from their
confinement.
"No matter," said Ruef, in an interview printed in The
Examiner January 11, 1908, "how much effort is made, the place
cannot be kept clean. Filth accumulates and no running water
has been provided. The gases from the drain pipes permeate the
cells and are always present. No prisoner can keep himself
clean, and it is no wonder that clothing and everything is
uncleanly."
Schmitz, long of body, complained that he needed a long cell.
"I would like a longer cell," he is reported as saying. "My
legs are too long and I cannot stretch them out. The hole is
beastly and no place for a clean man."
Louis Glass declared that he would be dead in a few days if not
permitted to remain outside his cell.
[358] See affidavit filed by District Attorney Langdon in The People
vs. Patrick Calhoun et al., No. 823.
[359] See affidavits filed by District Attorney Langdon, and by
Judge Dunne, in the case of Patrick Calhoun et al., No. 823.
[360] Langdon does not state in his affidavit what this evidence
was. But at the trial of Ruef for offering bribes to Jennings
Phillips to grant the Parkside Railroad franchise, former
Supervisor Wilson testified that at the first Ford trial Ruef
had asked him to bury his memory of the money transactions and
discussions with Ruef. Ruef at the time was pretending to be
assisting the Prosecution in conformity with the terms of his
immunity contract.
[361] District Attorney Langdon, in an affidavit filed in the case
of The People vs. Patrick Calhoun et al., No. 823, states his
attitude toward Ruef. Mr. Langdon says:
"Affiant further avers and declares that if affiant believed
that the defendant Ruef had fully and fairly performed his
part of the agreement, and had honestly rendered such service
to the State as would have entitled him to the consideration
set forth in the immunity contract, this affiant would have
moved in open court to dismiss the indictments against
defendant Ruef, and if said motion were denied and affiant was
directed by the Court or any other official to proceed with
the trial of said defendant, this affiant would have declined
to do so, and after exhausting every resource at his command
to carry out the terms and conditions of said immunity
agreement, would have resigned his official position of
District Attorney of the City and County of San Francisco,
rather than prosecute the defendant Ruef.
"This affiant avers that it was only when he became convinced
that the defendant Ruef was still traitorous to the State he
had debauched, and whose laws he had defied, and that instead
of trying to make reparation for the wrong he had done, was
endeavoring not only to save himself from the punishment he so
richly deserved, but also was endeavoring to make certain the
escape from punishment of his co-defendants, that affiant
determined the immunity contract to have been broken by Ruef,
and no longer in force and effect."
[362] The Examiner in its issue of January 19, 1908, stated that the
abrogation of the immunity contract, "means among other things
that Ruef will now have aligned in his defense, the massed
influence of interests represented by the prosecution to
command $600,000,000 in wealth."
[363] Heney, in an affidavit filed in the case of The People vs.
Patrick Calhoun et al., No. 823, states that he finally said
to Kaplan, "You only annoy and irritate me by coming here,
Doctor, and I wish you would stay away. I don't want to get
mad at you, because I respect you and am satisfied that you
are sincere, but Ruef is making a fool of you, and I have
wasted more time than I can spare in talking with you about
these things. You will do me a great favor if you will stay
away from my office."
In spite of this suggestion, Kaplan, a few days later, called
Heney up on the telephone. Of the incident, Heney says in his
affidavit: "A few days later, however, he called me on the
telephone. I was at my office at the time, and do not know
where he was. He said over the telephone in substance, 'Mr.
Heney, I don't like to trouble you any more, but I had a talk
with Mr. Burns and I have since had another talk with Mr.
Ruef, and I am sure that Mr. Ruef's testimony will now satisfy
you. He says that when he is on the witness stand and you ask
him'--I interrupted him at about this point and said in a very
severe tone of voice, 'Dr. Kaplan, I don't want you talking
such stuff to me over the phone, or anywhere else. I have
asked you not to talk to me about this matter any more and not
to come to my office, and I will now have to ask you not to
call me any more on the telephone. I don't want to hear
anything more about Ruef's testimony.'"
[364] See affidavits filed by Rabbis Nieto and Kaplan in the case of
The People vs. Patrick Calhoun et al.
[365] See Chapter XV.
[366] See Chapter XV.
[367] A letter from W. H. Payson, a leader of the San Francisco bar,
to Rabbi Nieto fairly expressed the public attitude on the
Rabbi's stand. Mr. Payson's letter read: "Rabbi Jacob Nieto.
Dear Sir:--As you have written a letter to the public
explaining your connection with the Ruef case, it may not be
out of place for one of the public to reply.
"When Mr. Ruef made his apparently frank statement admitting
that he had betrayed his city into the hands of the spoilers,
but promised to do all in his power to right the wrong,
whatever the consequences might be to himself, the public
believed him and believed that he was going to do right
because it was right and for his own self-respect, and not at
the price of saving his own skin. Acting on this assumption
many of us congratulated Mr. Ruef and assured him that he had
gone far toward recovering his position in the public esteem.
It now turns out from your letter of explanation that Mr.
Ruef's public statement of his high and noble purpose was a
mockery and hollow sham; that he had rejected any proposition
to act the man, but like his contemptible associates, sought
only to escape his just deserts.
"We recognize the unfortunate necessity the prosecution was
under of granting immunity in order to secure the evidence to
convict the greater felons, but surely the officers of the law
were fully qualified to attend to that miserable business. If
you could have influenced Mr. Ruef to stand on the higher plane
of honor and decency of which you are the advocate and
representative, you would indeed have done a great public
service and you might have saved him for better things, but it
would seem that your services were directed chiefly to saving
him from the just penalty of his crimes and that the
arrangement with him was on the same sordid level as the
immunity contracts with the Supervisors, for which no
ministerial services were necessary. From your position and
religious heritage we had a right to expect that your
distinguished services would have been put to a better use. I
am still sufficiently credulous as to believe that with proper
influence Mr. Ruef might have been induced to take the course
we were led to believe he had taken.
"Your letter even leaves it to be inferred that Mr. Ruef is
justified in his present attitude, and that the judges, who,
from your statement, were ready to go to the extreme of mercy
and consideration, are now to be censured for not carrying out
an immunity contract which has been flagrantly broken by the
other party to it.
"The serious features of this unfortunate situation are not
that officials should receive bribes, or that men of wealth and
standing should bribe them, or that attorneys of reputation
should engineer the filthy operation, but that not one of the
army of bribed and bribers has been found of sufficient
manliness or moral stamina to make a frank statement of the
facts and give aid in the cause of justice, and that so many
people are willing to shield the influential criminals for
commercial motives, and that there is so low a state of public
morals as to make these things possible.
"The great body of the public is heart and soul back of this
prosecution, because we believe it is an honest attempt, not
merely to convict certain criminals, but to elevate the
standard of public morality, and whatever may be the outcome
and even though, through successive miscarriages of justice,
every guilty man escape his legal punishment, the graft
prosecution has, nevertheless, succeeded beyond our fondest
hopes; nine-tenths of its work has been accomplished, and in
the teeth of the most determined and desperate opposition
perhaps ever known.
"Be assured that every guilty man will be convicted at the bar
of public opinion, and from that conviction there will be no
appeal and no escape; they will be known and branded for life,
each and every one. The public is not a party to the immunity
contracts.
"Very truly yours,
"W. H. PAYSON.
"San Francisco, January 30, 1908."
[368] District Attorney Langdon's statement in reply to these
criticisms was as follows: "I have no answer at this time to
make to the statements given out by Patrick Calhoun and made
in behalf of other defendants in the graft cases with the
intention of discrediting the prosecution and attempting to
lead the public to believe that we have acted unfairly in the
conduct of these cases. The time will come when such charges
will be answered, but they will be answered only as events
shall direct.
"Nothing that has occurred within the past few weeks has in
any way complicated the situation as far as the prosecution is
concerned or has tended to weaken our position. The original
plans of the prosecution are to be carried out just as we have
always intended to carry them out. The Ruef case will be tried
immediately, and every other defendant under indictment will
be brought to trial just as quickly as the courts are able to
dispose of the cases. We shall not falter in our duty. I can
promise that while the present District Attorney is in office
this battle will be fought out to the end of the last case.
"The fact is that at the present time we have the tactical
advantage over all the defendants, who have allied their
interests for mutual protection. They know we have this
advantage and that is why they are shouting so loudly from the
housetops. We do not answer the attacks that are made because
we are trying law cases and our every energy is bent to the
prosecution of those cases. We are entirely satisfied, however,
with the position in which we stand at this time and are
prepared to fight our battles in the courts to a finish."
[369] The following are extracts taken from Mr. Weinstock's address:
"After all, the saddest thing is to find men who are rated as
decent, law-abiding, intelligent, presumably high minded and
moral, condoning the sins of the bribe givers and deploring
their indictment and prosecution.
"Both the commercial and political bribe givers committed
serious crimes, but by far the more serious was the crime of
corrupting public officials, because the tendency of this crime
is to undermine the very foundation of the State, thus leading
to the ultimate destruction of democracy.
"If the spirit of the respectables, fighting and condemning the
graft prosecution, is to become the common spirit, then must we
bid farewell to civic virtue, farewell to public morality,
farewell to good government and in time farewell to our
republican institutions and to civic liberty."
[370] A very good example of this is shown in a memorial from
Sonoma. The memorial read as follows:
"Sonoma, Cal., March 18, 1908. To William H. Langdon, Francis
J. Heney, Rudolph Spreckels and others engaged in the graft
prosecution in San Francisco. Gentlemen: It appearing that a
portion of the press of this State is engaged in belittling
the efforts of those engaged in the prosecution of the graft
cases in San Francisco, and is endeavoring to impute improper
and unjust motives to all who have such prosecution in charge;
and we realizing that it is the duty of all honest people
everywhere to uphold the hands of the prosecution, and to
encourage them to proceed in all lawful ways to continue in
their efforts to bring all law breakers to justice,
"We, the undersigned citizens and residents of Sonoma and
vicinity, mindful of the good work you are all doing, wish to
show our appreciation of your efforts, and encourage you in
continuing to pursue the course you have marked out, to the end
that all law breakers shall be punished and the majesty of the
law vindicated."
[371] Heney, in a published statement regarding these indictments,
said: "We do not consider for a minute that there is a
particle of merit to any of the claims made by the defendants
that the former indictments were defectively drawn in any
detail. It is wise, however, to be prepared for anything that
might happen at any subsequent time, and so the present true
bills have been found. These indictments are so drawn as to
eliminate every technical objection that has been made by any
of the defendants to the former indictments, and the action
has been at this time so that the statute of limitations would
not run against the crime charged. There is absolutely no
significance to the fact that the name of Abbott and Mullally
were omitted, except that we feel that the cases against the
three defendants named are of far greater importance. Our sole
purpose has been to throw an anchor to windward to avoid
possible trouble in the future."
[372] James D. Phelan, at the mass meeting called after the
attempted assassination of Heney, summed up the Parkside case
tersely: "Take the Parkside case," he said. "There were some
men who wanted a franchise which we were all willing to
concede, but the boss said it would be advisable to pay for
it. Instead of making a demand upon the Supervisors and an
appeal to the citizens on the justice of their cause and the
desirability of giving them the franchise, they continued
their dickering with Ruef, and for so much money, thirty
thousand dollars, I believe, he said he would give it to them.
Then they 'doctored' their books and went down to the Crocker
National Bank and got the money in green-backs, handed out to
them by the teller of that institution, whose managers were
stockholders in the Parkside, among them a gentleman who told
you the other day to vote against the Hetch-Hetchy
proposition, Mr. William H. Crocker.
"Now, finding that they could get so easily a privilege by
paying for it, what did they do? They asked Mr. Ruef to give
them the franchise, not on Twentieth avenue, an ungraded
street, which they first wanted, but in Nineteenth avenue,
which had been dedicated as a boulevard for the use of the
people, which was substantially paved, and which was the only
avenue we had to cross from the park to Ingleside. He said to
them that that would take fifteen thousand dollars more, and
they said 'It's a bargain.' And these gentlemen who sought the
least objectionable franchise, tell you now that they were
victims, tell you now that they could not get their franchise
any other way. They were glad because they were a part of the
system, a part of the 'other fellows' of the affiliated
interests. They were glad to pay their money, which was a
paltry sum to them, in order to perpetuate the rule of Ruef;
that they could go to him on any other occasion to get an
extension, or a privilege or a franchise, or anything that
they wanted, by simply paying for it. It would be the simplest
form of government, my friends, to have somebody sitting in a
place of power and pass out to you what you want. It would
save you the expense of a campaign, it would save you the
advertising in the newspapers, it would save you the cost of
mailing a circular to every voter. It is indeed, a most
economical and direct method of getting what you want from the
government."
[373] The Oakland Tribune, in support of Ruef's plea for delay,
said: "Now the question arises: Is Ruef now being prosecuted
in good faith for the offenses alleged against him or is he
being forced to trial without adequate preparation merely to
coerce him into giving testimony he has repeatedly told Heney,
Langdon and Burns would be false? Is not the summary process
of law being invoked to compel Ruef to tell to a trial jury a
different story from the one he related under oath to the
Oliver Grand Jury? In other words, is not the prosecution now
trying either to punish Ruef for refusing to commit or convict
himself of perjury or intimidate him into assisting, as a
witness under duress, Heney and Langdon to make good the
threat they reiterated on the stump last fall that they would
send Patrick Calhoun to State prison?
"Admitting Ruef to be guilty of all the crimes of which he
stands accused, is he not now being proceeded against in a
criminal spirit and with a criminal intent? Having failed to
get what they want by compounding the felonies of Ruef and his
followers, are not the prosecution resorting to compulsion
under the forms of law to compel the commission of perjury?"
[374] Judge M. T. Dooling was at the time Superior Judge of San
Benito, one of the smaller of the interior counties. He had,
however, already a State-wide reputation for integrity and
ability. He left the San Benito County bench to accept the
appointment of President Wilson as United States District
Judge.
[375] Some of these trailers were arrested and forced into court. On
one day four men, Frank Shaw, alias Harry Nelson, Harry Smith,
alias Harry Zobler, J. R. Johnson, alias J. R. Hayes, and
Cliff Middlemiss were placed under arrest for following
Detective Burns.
[376] According to Peter Claudianes' confession to Burns, he had
been summoned from Chico to San Francisco by Felix Pauduveris
early in March. Pauduveris told him he had a hard piece of
work for Claudianes to do, namely, kill Gallagher, the chief
witness in the graft prosecution. Pauduveris had told him
there was $1000 apiece and three dollars a day for expenses in
the job for them. The first proposition, according to
Claudianes' confession, was for Claudianes to shoot poisoned
glass into Gallagher's face by means of an ordinary
sling-shot. But this plan was abandoned on the ground that
Claudianes' capture would be sure to follow. A plan to poison
Gallagher was also abandoned. Destruction by means of dynamite
was finally decided upon. Pauduveris had taken Claudianes over
to Oakland and showed him where Gallagher resided. After the
failure of the dynamite plot, Claudianes had arranged to
secure apartments in the same building with Gallagher and put
poison into Gallagher's milk. Before this plot could be
carried out, John Claudianes had confessed and Peter had
become a fugitive from justice.
In his confession to Burns, Peter Claudianes stated:
"Pauduveris said the prosecution with Heney, Langdon, Burns
and Spreckels had put about 50,000 men out of work. We must
get rid of Gallagher as he is their principal witness. If he
is put out of the way the Prosecution will end. There is about
$2000 in it for us and about $1000 in it for your brother
John. Felix Pauduveris was very angry because no one was
killed in the explosion at the Schenck house. He said it was
not a clean job."
In his confession, Claudianes stated further:
"I thought I was working for Ruef, as I knew Felix was a very
intimate friend of his. When Felix told me I had got to shadow
Gallagher I knew the word came from Ruef. Felix said that Ruef
would never go across the bay, as he had them all buffaloed.
Ruef was too smart for those fellows, Felix said, and the gang
was all behind Ruef. The prosecution had no grudge against
Gallagher, but it had a grudge against Ruef."
[377] Pauduveris had been employed by the United Railroads as a
"spotter." At the time of the explosion he was still in that
corporation's employ. He was at the same time a political
follower of Ruef.
[378] The attempt upon Gallagher's life led the prosecution to take
steps to secure his testimony in a form in which it could be
used before a trial jury in the event of Gallagher's death.
Under the California law, testimony taken at a preliminary
hearing can, in the event of the death or disability of a
witness, be used at the trial of the case. After the Parkside
case trial, Ruef was arrested on a charge of bribery and given
a preliminary examination at which Gallagher testified against
him. Gallagher's testimony was thus made secure against poison
or dynamite.
[379] The Examiner following the explosion printed a series of
ridiculing cartoons picturing the dynamiting of a bird cage
and describing at length the escape of the parrot that had
occupied it.
[380] The Chronicle took advantage of the dynamite outrage to voice
its condemnation of Gallagher. "There is," said that paper in
its issue of April 24, "no more undesirable citizen on earth
than the contemptible boodler James L. Gallagher, who is
living on the profits of the shame which he brazenly flaunts
in the face of mankind, but the effort to discover the
miscreant who dynamited the house where he was living should
be pushed as vigorously as if the intended victim was the most
estimable citizen of California. Society despises such
boodlers as Gallagher, but it does not seek their destruction
by dynamite. The dynamiter is a coward who is even more
contemptible than a boodler. He sneaks up in the dark, fires
his explosive and runs, because in his craven soul he dare not
stand up and meet his enemy. The punishment of the
dynamiter--successful or unsuccessful--should be severe, but
it should be solemnly inflicted after due process of law.
"It is, of course, possible that some of the wretches with
whom he was associated during his career of crime have taken
that method of getting rid of his testimony, but it is not
probable. Among those against whom he has not yet given the
testimony which he will give are the only persons who can be
conceived of as having a motive to get Gallagher out of the
way, but no one that we hear of suspects any of them of having
resorted to that atrocious method of defense, in which six
persons besides Gallagher himself came near being murdered. In
the absence of any conceivable sufficient motive the dastardly
act must be assumed the work of a wicked man gone crazy."
[381] The following from the San Francisco Argonaut of May 2, 1908,
is fairly expressive of the attitude of the San Francisco
weekly press on the attempt on Gallagher's life: "Mr. Heney in
so far as it lay in him to do it, 'placed' the 'crime' upon
the 'minions' of Calhoun. The other independent and all-seeing
minds of the prosecution's staff fell in with this theory of
the case. So far as the so-called graft prosecutors are
concerned there is no mystery about the matter--the explosion
in Gallagher's house was nothing less than an attempt to
assassinate that eminent worthy for the sake of 'getting him
out of the way.' This theory has to face several embarrassing
considerations. In the first place, Gallagher's testimony has
been given again and again, and stands as an official record
in a half-dozen instances. Getting Gallagher out of the way
would not, therefore, do away with his testimony. Furthermore,
there are other witnesses competent to testify to every vital
fact in the Gallagher story. So far as the immediate case is
concerned, Gallagher has already given his testimony and the
effect of 'getting him out of the way' would be only to
emphasize his statements. Furthermore, if there had been any
wish to get Gallagher out of the way there has been plenty of
chances to do it any time this year and a half past. If
assassination has been part of the scheme of the defense,
there have been ten thousand opportunities since the striking
of that famous bargain between Spreckels and Gallagher inside
the Presidio gate. The thing might have been done, too,
without hazarding the lives of half a dozen women and
children."
In view of the inability of Mr. Langdon's successor in the
District Attorney's office to make effective prosecution of
the graft cases, on the ground that Gallagher, who had left
California, was absent from the State, and that his testimony
was necessary to secure convictions, the Argonaut article
makes interesting reading.
[382] Heney's exposure of Haas was unquestionably warranted and
necessary. The incident, however, has been made subject of
much misrepresentation and attacks upon Heney.
[383] Heney in a speech made before Mayor and Supervisors showed how
the prosecution was harassed by thugs.
[384] See transcript in The People vs. Ruef (Parkside case) for
dismissal of these indictments and of other indictments
against Parkside officials.
[385] For additional data regarding this case, see Chapter XIV,
footnotes 180, 181, 198, 199, 200, 201.
[386] See footnote 199.
[387] Months after, when men had been indicted for endeavoring to
influence jurors to vote for Ruef's acquittal in the United
Railroads case, Isaac Penny, who had acted as foreman of the
jury that failed to agree in the Parkside case, in a public
statement denounced that jury as not honest. "Had I known
then," said Penny in an interview printed in the San Francisco
Call, September 30, 1908, "what I have since learned about
jury tampering, I would have sprung a sensation in Judge
Dooling's court that would have resulted in the haling of
numerous men before the court. * * * I have been turning this
over again and again in my mind, and there is but one
answer--that jury was not an honest one."
Later, Penny gave sensational testimony along this line in
Judge Lawlor's court.
[388] From one end of the State to the other, Judge Dunne was warmly
commended as a jurist and a man. "The name of Judge Dunne,"
said the Pasadena News, "stands in California honored among
honest men because of the enemies he has made. Every
politician and every newspaper that has defended bribery and
sought to embarrass the graft prosecution is against Judge
Dunne. They stocked a political convention against him. Judge
Dunne's defeat in San Francisco would be a disgrace to that
city and a reflection on the honor and intelligence of the
people of California."
"The corrupt corporation organs," said the Sacramento Bee,
"and the servile journalistic tools of the predatory
rich--such as the Argonaut, for instance--are barking in
unison at the heels of Judge Dunne in San Francisco and
declaring he is unfit to sit on the bench. Dunne's crime in
their eyes is that he did his simple, plain duty in the graft
prosecution cases. If he had neglected that duty, to tip the
scales of Justice over to favor the 'higher ups,' the same
gang, with the Argonaut in the lead, would be praising him to
the skies as a most just judge, a righteous judge, and would
be clamoring for his re-election."