CHAPTER XXIV.

JURY-FIXING UNCOVERED.

From the beginning of the graft trials rumors of efforts to tamper with

the trial jurors had been current. The failures of juries to agree in

the face of what to the man on the street appeared to be conclusive

evidence, lent more or less color to these reports. But it was not until

Ruef's trial[389] for offering a bribe in the over-head trolley

transaction opened, that the jury-fixing scandal took definite shape.

Then, came sensational exposures, involving indictments and trials for

jury-fixing which for a time over-shadowed in interest the graft trials

themselves.

Ruef's trial for offering a bribe to Supervisor Furey to vote for the

over-head trolley franchise, began August 27, 1908.[390] But nearly a

month before, on July 31, District Attorney Langdon had been given

definite information that an attempt had been made to bribe one of the

talesmen who had been called for jury service at the Ruef trial. The

talesman in question was John Martin Kelly, a real estate salesman.

The list of prospective jurors had been made public in July. Late on the

afternoon of July 31, Mr. Langdon received a telephone message from

Kelly requesting an interview, which was granted immediately.

Kelly told Langdon[391] that that afternoon he had been approached by a

building contractor, E. A. S. Blake, and offered $500 if he would

qualify on the Ruef jury and vote for acquittal.[392]

Langdon called in Burns. Burns advised Kelly to pretend to listen to

Blake's overtures, to insist that $500 was too little, and to demand

$1000, to the end that Blake might be trapped and the jury-fixing, which

all believed to be going on, be uncovered.

Kelly, co-operating with Burns, followed these instructions. In his

dealings with Blake, Kelly insisted upon $1000 as the price of his

services in Ruef's behalf, which Blake finally consented should be paid

him. The negotiations were carried on during August. Finally on

September 3, Burns directed Kelly to step up to the bar of Judge

Lawlor's court where Ruef's trial was proceeding, and tell his story.

As Kelly on that day approached the bar, during a lull in the

proceedings, Ach, it is alleged, was heard to ejaculate to the little

group about Ruef, "There she goes."

Frank J. Murphy, one of Ruef's attorneys, immediately jumped to his

feet, and claimed the court's attention.

"If your honor please," said Murphy, "if that completes the examination

of this panel and it is necessary to draw further from the box, there is

a statement I desire to make to this Court which is based upon some

reflection and upon the advice of the Presiding Judge of this court.

Some several weeks ago, or about two weeks ago I should say, one of the

jurors upon this panel sent to me indirectly and offered to accept money

for his vote. Charges of bribery, of course, have been numerous in

connection with this case, but this is the first instance that I have

ever heard of in connection with this case or in connection with any

other case that any juror has solicited a bribe, or has been offered a

bribe. I consulted with Judge Sturtevant[393] about the matter on the

1st of September. I stated to him the facts in the case and he advised

me that whenever the time became ripe for the juror to be called into

the box that it was my duty to present it to this court. Now, the

juror's name is John Martin Kelly, and I was informed indirectly that

Mr. Kelly solicited $1000 for his vote in this case, and the matter is

of so much importance, your Honor, that I think an investigation should

be had by this court before this case proceeds further, and if necessary

the Grand Jury should look into this matter and give it a thorough and

exhaustive examination. Now, if your Honor please, I don't want to do

Mr. Kelly an injustice. I would hesitate, if the Court please, to make a

charge of that kind, but my informant is a man whom I have known but a

very short time, and after a thorough examination by me of him, after

eliciting from him every fact I could in connection with the case, I am

induced to believe that he came with authority from Mr. Kelly to make

this proposition to myself and one of the attorneys who was connected

with one of the other cases. Now, if the Court please, under the advice

of Judge Sturtevant, whom I consulted on the subject twice, I deem it my

duty to call that to the attention of your Honor and if it is necessary

to file any affidavit to set the machinery of this court in motion I am

willing and ready to procure an affidavit to file so that a complete

investigation may be had of this matter."

Murphy's statement created a sensation, which was more than duplicated

by the statement made by Heney the moment after.

"If the Court please," said Heney, "before Mr. Murphy takes the stand I

have a statement to make. Mr. Murphy says that he discussed this subject

on the 1st. I have in my pocket a statement dictated by Mr. Kelly--this

is one of the most audacious pieces of business I have yet met with--I

have a statement made by this juror on August 28, 1908, that is before

Mr. Murphy bethought him to go and see Judge Sturtevant, in which this

juror sets forth fully the fact that a man was sent to him to bribe him

in this case, and this juror not only made that statement on August

28th, but this juror went to the District Attorney's office, to Mr.

Langdon, the other day, on July 31st, the day it was made, it is a long

time now and he has been acting under the District Attorney's advice

ever since, and Mr. Murphy never saw fit to call your Honor's attention

to it until he saw Mr. Kelly come in the door there and anticipated from

the fact that Mr. Blake was traced to Mr. Ach's office yesterday that

Mr. Kelly was about to state to your Honor that he wanted this matter

investigated, and that an attempt had been made to bribe him, and that

under the District Attorney's advice he was going on to permit them to

pay the money, if necessary, so that we might catch them in this act,

and it is only because they have had occasion to suspect we knew it,

that Mr. Murphy has the audacity to come in here and ask for an

investigation. Now, we ask that Mr. Kelly take the stand and make the

statement to your Honor that he came here for the purpose of making, and

that Mr. Murphy didn't say anything about until he saw him standing

there ready to make it to your Honor. He jumped up as soon as he saw Mr.

Kelly walk in here."

After Heney had made his statement, Murphy took the stand and swore that

Kelly, through Blake, had solicited a bribe of $1000 from Murphy to vote

for Ruef's acquittal. Nevertheless, Mr. Murphy, as well as Mr. A. S.

Newburgh, another of Ruef's attorneys, admitted under oath that they had

suggested to Blake that he interview Kelly.[394]

Kelly took the stand and testified in a straightforward manner that he

had been approached by Blake, that he had consulted with the District

Attorney, and that a trap had been set to catch the alleged jury-fixer.

Detectives were sent out to notify Blake that he was wanted in court.

But Blake could not be found. Later he was arrested as he was about to

board an outgoing train.

Blake was found to be a poor man on the brink of bankruptcy. He had

neither money, nor property. Nevertheless, attorneys[395] came forward

to defend him; bonds were furnished him. The most powerful and wealthy

defendant in the graft cases was not better served. But the best of

legal service could not save Blake from indictment. Later, both Newburgh

and Murphy,[396] Mr. Ruef's attorneys, were indicted also, charged with

corruptly attempting to influence a juror.[397]

Kelly, at Blake's trial, told the same straightforward story which he

had given at the original investigation. He was corroborated by his

employer, and others. His testimony was most sensational. He stated, for

example, that Blake had told him that it would be easy for him to

qualify as a juror; that Ruef's attorneys would try to make it appear

that they did not want him, and that their examination would be so

thorough that the prosecution would not ask a question. Blake had also

told him, Kelly testified, that he need not worry; that some jurors had

taken money for their votes in the former Ruef trial and had not been

caught.

Blake was convicted. He was later sentenced to serve four years in the

penitentiary. After Blake's conviction, but before sentence was passed

upon him, he sought out Attorney Matt I. Sullivan, one of the few

prominent San Francisco attorneys who had kept free from entangling

alliances with the graft defense. To Sullivan, Blake made

confession[398] of his participation in the jury-fixing transaction. In

his confession he involved Attorneys Murphy and Newburgh. Later, in open

court, he made public statement of his participation.[399]

Blake in his statement in court set forth that he had become acquainted

with Newburgh through having offices in the same building with him. He

had, he said, met Murphy in Newburgh's office. Newburgh had introduced

them. Murphy, he stated, had shown him a list of prospective jurors, and

had asked him if he knew any of them. He had told the lawyers that he

knew John Martin Kelly. They had, Blake stated, got him to make an offer

to Kelly, which he did. He had offered Kelly $500 and finally $1000.

Kelly (acting under instructions from District Attorney Langdon and

Burns) had finally agreed to take $1000. Blake testified that he had

reported back to Murphy that Kelly would accept the money.

Following his arrest, Blake testified, his lawyers had come to him

without his solicitation,[400] with the statement in explanation that

they had come from a mutual friend. Blake stated that he had heard

afterward that the "mutual friend" was Murphy and Newburgh. His bonds

had been furnished without his stir, through his attorneys. Murphy and

Newburgh, he claimed, had assured him they would do everything they

could for him; that he need not worry; that they would provide for him

and provide for his wife in case he were convicted.[401]

Continuing, Blake stated that after his conviction he had had a talk

with Murphy. The general nature of the interview was that he had good

ground for a new trial. "They said," Blake testified, "'when we get up

to the higher court, it will be thrown out,' or something of that kind."

According to Blake's statement, a fund of $10,000 was promised him and

an agreement was made that his wife should be paid $100 a month during

his imprisonment. Murphy, he said, showed him what purported to be

promissory notes[402] aggregating $7500. The notes, he alleged, were

made to Murphy and signed with Ruef's name with the endorsement of

Ruef's sister and father. Blake was requested to select a representative

to hold the notes. It was alleged that Blake named Martin Stevens, an

attorney, as such representative.[403]

After Blake's confession came the trials of Murphy and Newburgh. They

did not differ to any great extent from the principal graft trials.

There were the delaying tactics that had been characteristic of the

graft cases; failure of jurors to agree; acquittals.

Murphy's trial came first. There was against him the testimony of Blake

and Kelly, corroborated at many points by other witnesses. Murphy made

denial. In his defense, too, many witnesses took the stand to testify to

his good character.[404] Murphy was acquitted.

Newburgh's trial followed. The first jury failed to agree. It was stated

at the time that the jury stood six for conviction and six for

acquittal. At his second trial, Newburgh was acquitted.

But Blake was in jail under a four years' sentence to the penitentiary.

Astonishing as the revelations in the Blake jury-fixing case had been,

they were to be overshadowed by the events of Ruef's trial. Even as the

city stood aghast at the evidence of jury tampering, Assistant District

Attorney Heney was, during the progress of the trial, shot down in open

court.

FOOTNOTES:

[389] Of the "fixing of juries," The Chronicle in its issue of

September 19, 1908, said: "Every move made in the Ruef trials

gives moral evidence that systematic bribery of juries is

being practiced which is as convincing to the public as were

the signs of corruption during the entire Schmitz regime, but

before the explosion. Nobody doubted then that the Mayor, the

Supervisors and all officials appointed by Schmitz were

thieves. Nobody doubts now that all through these graft trials

there has been systematic corruption of juries. In private

conversation it is treated as a matter of course. Nobody, of

course, could 'prove' it. Nobody needs legal proof to be

convinced."

Of the incident, The Call said in its issue of September 19,

1908: "For a long time there has been every reason to believe

that veniremen summoned to try Ruef were being bribed or

promised bribes to vote for acquittal. The dubious character

of Ruef's attorneys, or some of them, and their known

affiliations were wholly consistent with this theory.

Circumstances not amounting to absolute proof, but giving

cause for strong suspicion, came to the surface from time to

time. The jury fixers grew bolder with impunity, and, in fine,

the pitcher went to the well once too often."

[390] The trial had been delayed by Ruef's preliminary hearing. The

hearing was held in order that Gallagher's testimony might

become of record in a way that would permit of its being used

at Ruef's trial, in the event of Gallagher's assassination.

Ruef's attorneys by lengthy cross-examinations and other

delaying tactics, succeeded in dragging the case along for

sixty-nine days. Further delays were caused by the usual

efforts made to disqualify Judge Lawlor as trial judge. In

this way, the defense managed to keep the attorneys for the

State engaged until late in August. Then Ruef was made to face

another jury.

[391] Kelly claimed to have telephoned Langdon within a few minutes

after Blake had left him. In this he was borne out by his

employer, Samuel M. Snyder. Snyder testified that on his

return to his office on the afternoon of July 31, he met Blake

leaving. Kelly had followed him into his private office. Of

the interview which followed Snyder testified at the hearing

of the case as follows:

"I said (to Kelly) 'Well, what is the matter now?' And he said

that Mr. Blake was just in and wanted to give him $500. I

said, 'What for?' 'Well,' he said, 'to do the right thing on

the jury.' He had been called on a jury case, the Ruef case.

He said, 'I had a notion to punch his head.' That is just the

remark Mr. Kelly used. I said, 'Oh, I would not get excited

like that; that is foolishness.' He said, 'What do you advise

doing? If I go out and do anything rash I am liable to get

into trouble, ain't I?' I said, 'Yes, you better not do that.'

I said, 'If I were you'--this is the language I used to Mr.

Kelly, I said, 'I would telephone to Mr. Langdon and tell

him.' He said, 'Well, that might hurt your business.' I said,

'Well, I don't believe that would hurt my business any. I

firmly believe that jurors should not be tampered with by

anyone to try any case, no matter what it is.' And from there

he did telephone to Mr. Langdon."

The Court: "When was this, Mr. Snyder?"

"A. That was on the 31st of July, pretty close to 5 o'clock in

the afternoon.

"Q. Did Mr. Kelly call up a telephone number from the office at

that time?

"A. He called up Mr. Langdon from the office at that time. I

was sitting right by the side of him."

[392] Of Blake's negotiations Kelly testified: "Mr. Blake began

about this way: He said, 'Now, John, I have got a proposition

to make to you, and I don't know how you will take it. If you

like it, all right, if you don't, just keep it quiet.' He

says, 'There is a chance for you to make a little money.' He

said, 'You are drawn to serve on the Ruef jury.' I was

surprised to hear that. I told him, 'I know I am on some panel

in Judge Lawlor's Court, but didn't know it was the Ruef

jury.' I said, 'How did you find out?' 'Oh,' he said--I think

he said a friend of his told him, or something like that; but

anyhow he said, 'Now, it is this way; there is $500 in it for

you if you will get on that jury and vote to acquit Mr. Ruef.'

I says, 'Well, Mr. Blake, I have never done anything like

that, and it is a pretty big chance to take. I don't want

anything like that'; and he began to urge it on me. I said,

'Now, give me a chance to think it over.'"

Kelly testified that his first impulse was to denounce Blake.

But instantly he reflected that the denunciation would do no

good. Besides, he reflected, it was possible that Blake might

be trapped.

As soon as Blake left the office, Kelly told what had occurred

to his employer, Snyder, and within an hour was in consultation

with District Attorney Langdon and Burns.

[393] Judge Sturtevant, at the investigation which followed, showed

himself not at all clear as to details. Finally Murphy asked

him:

"Q. Judge, do you remember that I said to you that I had

information that one of the jurors was willing to sell his

vote for $1,000 and someone had come to me with that?

"A. I remember, Mr. Murphy, you mentioned the amount of $1,000

regarding one of his statements, but I would not go further

than that; I don't remember what this man had agreed to do for

the thousand dollars. That is my general recollection that

that is about the substance of the statement you made to me."

[394] Murphy's testimony on this point was as follows: "On a day

between the 20th of July and the 1st day of August, I went to

the office of Mr. Newburgh. Mr. Newburgh was then engaged in

defending Mr. Ruef on a preliminary examination had in one of

the Parkside cases. We were discussing generally the Ruef

cases and the graft prosecution, and a man came into the

office who was introduced to me by Mr. Newburgh as E. A. S.

Blake. This present jury panel had been drawn, and we were

discussing the Ruef cases generally, and finally I made a

remark that the trial of Mr. Ruef in one of these

cases--referring to 1436, 1437 and 1438, would proceed as soon

as the Police Court examination was finished, and I stated

that a jury had been impaneled, or a jury had been drawn, I

had a list of the jury in my pocket, and I pulled it out and

said to both Mr. Newburgh and to Mr. Blake: 'Perhaps you might

know some of these people.' Mr. Blake glanced at the list, and

he came down to the name of Mr. Kelly, and he said, 'I know

Mr. Kelly; I have known him for a number of years; I used to

work at Shreve's jewelry store with him; and he is an intimate

acquaintance of mine.' Then I said, having in mind the

decision of your Honor in the contempt case of W. J. Burns and

others--"

The Court: (interruption): "Did this occur after that

decision?"

"A. Yes--no, your Honor--I don't know--no, no. But having in

mind--I will state what I had in mind--a statement your Honor

had made at some previous time, that either side had the right

to find out how the jury stood; that is, if they used

legitimate means. I said to Mr. Blake, I said, 'How do you

think Mr. Kelly stands on the graft prosecution?' 'Well,' he

said, 'Mr. Kelly is a very liberal-minded fellow and I think he

would give Ruef a square deal.' So I then said, 'Well, I would

like to find out whether any of Mr. Burns' gumshoe men have

interviewed him, or whether he belongs to the Good Government

League or the League of Justice or any kindred organizations.'

He said he would find out the next time he met Mr. Kelly."

See printed transcript on appeal The People vs. Abraham Ruef,

Part II, Vol. II, p. 878. For Newburgh's statement see same

transcript, part and volume, pages 943 and 944.

[395] In this there was remarkable similarity to the legal

assistance given thugs who were from time to time arrested for

interfering with the work of the Prosecution.

[396] Murphy had figured in the Ruef trials, somewhat sensationally,

from the beginning. When, for instance, Ruef, early in March,

1907, was a fugitive from justice, Murphy was acting as one of

his attorneys. He was placed on the stand in Judge Dunne's

court. The Chronicle, in its issue of March 7, 1907, contained

the following account of his testimony:

"Frank J. Murphy, one of Ruef's lawyers, testified that he had

last seen Ruef just outside Hebbard's courtroom on Monday.

"Have you been doing any business with him since?"

"Murphy declined to answer this under his privilege as an

attorney. 'We are looking for an absconding and hostile

defendant, and the witness should not be allowed to draw

conclusions as to whether the business he is doing for him is

privileged,' declared Hiram Johnson.

"Heney suggested that it was the request to do this business

rather than the business itself, that was sought by the

Prosecution.

"A compromise was effected on an answer by the witness that he

had not communicated directly or indirectly with Ruef during

the past forty-eight hours."

[397] About the same time, Captain John J. West became involved in a

charge of being connected with an alleged attempt to corruptly

influence a talesman named John R. Foley to vote to acquit

Ruef. But the West case was so overshadowed in importance by

the Blake-Murphy-Newburgh proceedings that the public paid

comparatively little attention to it.

[398] "Confessing his crimes," said The Call in its issue of October

30, 1908, "Blake, the jury briber, lays bare the ulcer that

eats away the vitals of popular government. He explains why

the San Francisco Graft Prosecution has not yet put anybody in

the penitentiary. He makes it clear why Ruef is not in

stripes. He shows why it is next to impossible to convict a

rich man. He answers the familiar question, 'What's the matter

with San Francisco?'

"On his way to prison Blake pauses for a moment and gives the

people of San Francisco the most convincing argument in favor

of the Graft Prosecution that they have had since the boodled

Supervisors told their story of shame, and Ruef, in tears,

delivered his confession, since recanted. Blake's revelation

is of inestimable value to the cause of decency. Opportunely

he tears away curtain and scenery and lets the people see what

goes on behind the showy pretense of the graft defense. In the

nick of time he exposes some of the actors in that satirical

comedy which might very well be called 'To Hell with the

Law--Money is Above It.'"

[399] Members of the faculty of Stanford University sent the

following communication to Rudolph Spreckels, William H.

Langdon, Francis J. Heney, William J. Burns and their

associates:

"We, the undersigned citizens of the State of California,

realizing the far reaching significance of the sworn

confession, as a jury briber, of E. A. S. Blake, extend to you

our earnest and sincere congratulations on having successfully

demonstrated the nature of some of the obstacles blocking the

way of the conviction of powerful criminals in our

commonwealth.

"Believing that no stability of social relations, including

normal business conditions, can be established on a less firm

basis than incorruptible courts and honest juries, leading to

the prompt and sure administration of justice, we wish to

assure you of our continued confidence and moral support in

the great work upon which you are engaged."

The letter was signed by President David Starr Jordan and

practically all the members of the faculty.

[400] Similar testimony was given at Murphy's trial.

[401] It developed later that the Blakes had been living together

under a contract marriage. Later they went through the

marriage ceremony. This phase of the case was made much of by

the defense. Mrs. Blake, however, stood devotedly by her

husband through all the trying events that followed his arrest

and imprisonment.

[402] Of these promissory notes Blake, in his statement to the court

as published at the time, testified as follows:

"Q. How much money were you to get? A. I was to get $10,000.

"Q. For what? What were you to get that $10,000 for? A. Well,

I was to say nothing about this matter, and that my wife

would--

"Q. In other words--. A. She was to be provided for. She was to

get $100 a month. The Court. How? A. To be taken care of when I

was convicted, you know.

"Q. During your incarceration? A. Yes, and I was to have the

$10,000."

Mr. Langdon: "Q. Who told you he would give you $10,000? A. Mr.

Murphy.

"Q. What did he say? Just tell us what he said about that. A.

The money was to be placed in the hands of a third party, who I

would select, provided the one I selected would be satisfactory

to them and they felt they could always have confidence in, or

something of that kind. That $10,000 was to be turned over to

me immediately upon my sentence--just as soon as my sentence

was passed the money was to be turned over.

"Q. As soon as the court sentenced you you would receive the

$10,000 that Murphy put into the hands of this third person? A.

Yes.

"Q. Did he tell you what kind of money it was, or what

representative value it was. Did he show you any of that? Did

Murphy show you anything? A. Yes, he showed me $7,500, but he

did not show me the $10,000 that was put into the hands of the

party that I selected. He told me that he had it.

"Q. What was this $7,500 that Murphy showed you? In what form

or shape? A. In notes.

"Q. Promissory notes? A. Yes.

"Q. Signed by who? A. Signed by Mr. Ruef.

"Q. Abraham Ruef? A. Yes.

"Q. Who else signed them, if any one? A. They were indorsed by

his father and sister.

"Q. His father?

"The Court--promissory notes to you from Abraham Ruef, and

indorsed? A. The promissory notes, your honor, were made out to

Mr. Murphy, and he was to turn these over to the third party,

indorsed, I presume, to the third party, who I might select.

The notes read, 'One year after date I promise to pay to Frank

J. Murphy,' that is the way the notes read.

"Q. And signed? A. And signed by Mr. Ruef, and then they were

countersigned or indorsed by his father and sister."

[403] Stevens denied this. Stevens was called before the Grand Jury

and questioned. He declined to answer on the ground that the

relations of attorney toward client cannot be violated. Blake

exonerated Stevens from this obligation. But Stevens held that

he acted for Murphy as well as Blake. The court held, however,

that the communications were not privileged. Stevens in his

testimony which followed, denied everything that tended to

implicate himself and Murphy in any way with the attempted

jury fixing, or with the alleged $10,000 fund.

[404] Among those who testified to Murphy's good character was Rev.

H. H. Wyman, at that time the head of the Paulist Order at San

Francisco. Another Paulist priest, Rev. Stark, showed great

interest in Murphy's welfare.

After Murphy's acquittal a story was current in San Francisco

to the effect that at a dinner given soon after Murphy's

acquittal, Murphy had promised a present to the Paulist

Church, St. Mary's, and that Father Stark had announced that a

plate bearing Murphy's name and the date of his acquittal

should be placed upon the gift.

However unjustified the story may have been, Murphy did give

St. Mary's a present--a pulpit. On the pulpit was put a plate

bearing Murphy's name and a date. The incident so incensed

priests of the Paulist order who were not in sympathy with the

course of Fathers Wyman and Stark at Murphy's trial, that they

entered the church with a screw-driver, removed the plate, and

threw it into San Francisco bay. Later a second plate was put

upon the pulpit. So far as the writer knows, the second plate

is still in its place.

CHAPTER XXV.

THE SHOOTING OF HENEY.

In spite of the sensational events following the trapping of Blake, the

work of impaneling a jury to try Ruef went steadily on. After months of

effort,[405] a jury was finally sworn to try the case.

Again the telling of the sordid story of the city's betrayal commenced.

Gallagher, the pivotal witness, had begun his sorry recital. In the

midst of it occurred what those who had followed the methods of the

graft defense had long predicted.

Assistant District Attorney Heney was shot down.[406] The shooting

occurred in open court during a brief recess.

Heney was seated at his place at the attorneys' table talking with an

assistant. The jury had left the courtroom. Gallagher had for the moment

left the witness box and was standing a few feet from Heney waiting

opportunity to speak with him. A few feet further away was Heney's body

guard. In the room were something more than 200 citizens waiting for the

trial to be resumed. There was the usual confusion which attends a

five-minute court recess. Court attaches, officials, attorneys, citizens

were passing to and fro without hindrance.

The man who shot Heney had no difficulty in gaining access to the

courtroom. He walked deliberately to the attorneys' table, and before he

was even noticed, had fired deliberately at the Assistant Prosecutor.

The gun was held not more than six inches from Heney's head. In an

instant, Heney's bodyguard was upon the assassin. But the bodyguard's

efforts came late. Heney, apparently mortally wounded, was lying

unconscious on the floor, the blood gushing from a ragged hole in front

of the right ear, just under the temple.[407]

Heney's assailant was found to be one Morris Haas, an ex-convict, who

had succeeded in securing a place on the jury at the former Ruef trial.

Heney had exposed him.[408] When it was demanded of him why he had

attempted to kill Heney, he murmured incoherently, that it was "for

humanity's sake." Although closely questioned Haas would tell little of

value to those who were seeking to get at the real motive behind the

assault. He was thoroughly searched both by Detective Burns and Captain

of Police Thomas Duke, and then taken to the county jail where he was

closely guarded.

A short time before the shooting of Heney, Judge Lawlor had had

attorneys of both sides before him to state that in his judgment, he

should remand Ruef, who was out of jail under heavy bonds, to the

custody of the Sheriff for the remainder of the trial. Shortly after

this conference Heney had been shot down.

When the court had re-convened, and the jury had been dismissed for the

day, Judge Lawlor carried out his intention and ordered the Sheriff to

take charge of Ruef. The shooting had occurred on Friday afternoon,

November 13. The court adjourned until the following Monday.[409]

Heney in the meantime had been taken to a hospital. There it was found

that the wound was not necessarily fatal. The rumors current that Heney

had been killed were denied. This tended to calm the excitement.

Nevertheless, San Francisco and all California were aroused as never

before in the State's history. In a twinkling, the results of months of

misrepresentation, ridicule and abuse of the Prosecution were swept

away. Haas' bullet had not killed Heney,[410] but it had awakened the

community to tardy realization of its responsibility.[411] Men who had

laughed at the Examiner's "Mutt cartoons" ridiculing the Prosecution,

now threatened to mob The Examiner office. Patrons of the

defense-supporting Chronicle now voiced their utter condemnation of that

paper. Thousands withdrew their subscriptions from the two publications.

The time was ripe for the demagogue. An unpolitic word from the defense

just then, an incendiary speech from some unwise partisan of the

Prosecution, would have been sufficient to have sent a mob marching upon

the jail in which Haas and Ruef were confined, or upon the residences of

the indicted bribe-givers, or against the newspaper offices which for

months had labored to make the Graft Prosecution unpopular.

There was a feeling that the criminal element was too powerfully

intrenched to be reached through the ordinary legal channels. The

feeling, which had subsided when the Graft Prosecution opened,[412] that

the graft evil could not be corrected except by extra-legal means, was

to some degree revived.

In this emergency, the leaders of the Graft Prosecution, by counseling

moderation and observance of the law, did yeoman service in the keeping

of good order in San Francisco.

The Citizens' League of Justice[413] called a mass meeting for the

Saturday evening following the shooting. Even in the call, the League

urged there be no breach of the peace.

"Francis J. Heney," the League's call read, "has fallen by the hand of

an assassin, shot from behind while fighting at his post in the cause of

justice for the people of this city. He would be the first man to appeal

to the calm reason of the citizens to preserve order and proceed only by

the processes of law; to look not for vengeance, but to demand swift

justice through the courts. We make the same appeal."

Mayor Taylor presided at the meeting. Long before the hour set for the

opening, the auditorium was packed to the doors, with thousands on the

outside clamoring for entrance. Those in charge of the meeting were

compelled to call it to order several minutes before they had intended.

Professor George H. Boke of the University of California Law School, and

manager of the Citizens' League of Justice, was to introduce Mayor

Taylor. Several minutes before the time set for the meeting, the crowd

started a cheer for Heney. The demonstration lasted for fully five

minutes. Then some one started the cry, "Throw the Examiner out."

Hundreds half rose from their seats, their eyes bent upon the press

table where representatives of The Examiner were seated.

Professor Boke at once grasped the significance of the movement, and

acted on the instant. Stepping to the fore, he made a brief address

introducing Mayor Taylor, thereby checking the threatened demonstration.

Mayor Taylor was quick to sound the keynote of the meeting. "Let us," he

said in introducing the first speaker, "see to it that no matter who

else breaks the law, that we shall not break it."[414]

Every speaker who followed the Mayor emphasized this. "Let us," said the

Rev. William Rader, "have heads which are cool and minds which are

rational."

"We stand in this fight," said District Attorney Langdon, "for law and

order. And I want to say to you and ask you to pass it on to your

neighbors, that, as crimes have been committed, those crimes must be

punished, but punished within the law. And I want to say further, that

as the law officers of this city and county, we shall consider any man

who expresses an opinion or sentiment that we ought to resort to

measures extra-judicial, as an enemy of good government."

"Why," demanded James D. Phelan, "should we take violent steps? Is not

San Francisco a great, civilized community? Are not our American

institutions still intact? They are. And although in the early days of

San Francisco the Vigilance Committee, an extra-legal tribunal, was

resorted to for the purpose of correcting such abuses, we must remember

that at that time we were a border State, at that time we were a mining

camp. Only such a strenuous method would then have succeeded, because

judges who were on the bench were elected by ballot-box stuffers, a

council was elected in the same way. Crime was rampant, nobody was

punished. Then the men of San Francisco organized a tribunal and gave an

orderly trial to every offender whom they apprehended, and as a result

this city was cleansed of crime and remained a model community for

twenty years.

"But conditions now are different. It is true that within the last year

there has been a feeling in this community that the criminal law had

broken down, and that we could not, under the law, punish the

offenders; and that the courts, the highest courts, abetted and aided

criminals by the rankest interpretations, technical interpretations of

the statutes. They refused to lean on the side of order and justice, and

they have brought disgrace upon the judiciary of California, all over

the world.

"But our civilization and our institutions are safe. That vote the other

day, and the election of Judge Dunne, the election two years ago of

Judge Coffey and Judge Lawlor, give us courage and confidence to believe

that, under the constitution and the laws, we can win our battle if you

only give us time, without any resort to violence; and we are willing,

though one hundred days have passed, to pursue that work, because that

is the only way we can do it under the constitution and the laws."

When Rudolph Spreckels entered the building he was greeted with

demonstration. He, too, while expressing great sympathy for his friend

who had been stricken down, joined in counseling that nothing be done

outside the law.

With the urging that no exhibition of mob-violence be added to the

burden of the afflicted community, was given assurance that the Graft

Prosecution should go on; that the laws should be upheld; that those

responsible for the conditions which had been forced upon San Francisco

should be brought to justice. Whatever danger there was of violence to

members of the graft defense, vanished at that Citizens' League of

Justice mass meeting. At its conclusion, resolutions were adopted

condemning the methods of the defense, declaring unwavering allegiance

of those present to law, and pledging support in the cleansing of the

city of grafters and boodlers.[415]

Another crisis had passed in San Francisco. The situation was not unlike

that of two years before, when the clamor that drastic means be taken to

free the city of Ruef's domination, was silenced by announcement that

Rudolph Spreckels had guaranteed a fund for the investigation of

municipal conditions, and to prosecute those found to be guilty of

corruption.[416]

But even as the citizens met in mass meeting another tragedy of the

Graft Prosecution was enacted. Haas, under the eyes of policemen

specially detailed to watch him, killed himself or was killed. With him

died all hope of discovering who had urged him to avenge himself upon

Heney.

Haas' suicide, if it were suicide; or his murder, if it were murder; is

one of the mysteries of the graft cases. He was shot with a derringer.

The weapon was an inch through at the butt and 5-8 wide at the

muzzle--certainly an easily discovered weapon by officers practiced in

searching men. And yet, Haas had, before he was put in his cell, been

thoroughly searched both by Captain Duke[417] of the police force and

Detective Burns. The two officers are certain that Haas had no weapon

upon him. And yet, one theory advanced by his keepers is that Haas had

the derringer all the time concealed in his shoe. Another theory is that

the derringer was smuggled in to him. But, with Haas under watchful eyes

of special guards, by whom? Another theory, popular at the time, was

that Haas had been murdered in his cell. But if murdered--or even if the

derringer were smuggled in to him--what was the motive behind it? These

are questions which, short of some death-bed confession, perhaps, are

not likely to be answered.

Those who hurried to his cell at the report of the derringer found Haas

dead. Whether he had shot himself or whether he had been shot, his lips

were sealed forever.

On the Sunday following the shooting of Heney, most of the Protestant

pastors of San Francisco made the attempted assassination the subject of

their sermons. The same course was taken throughout the State generally.

In the afternoon mass meetings were held in all parts of the State, at

which resolutions were adopted condemning the methods of the

defense,[418] and pledging support to the prosecution.

Telegrams[419] of condolence and of encouragement poured in from all

parts of the country.

But in spite of this popular expression of sympathy, there were

astonishing exhibitions on the part of the associates of those who had

been indicted or nearly indicted because of the graft revelations, of

feeling against Heney. For example, Rev. David J. Evans, of Grace

Episcopal Church, on the Sunday following the attempted assassination,

offered prayer for the recovery of the stricken prosecutor. Instantly

there was commotion in the pews. Members of the congregation, by frown

and toss of head, indicated their profound disapproval of their pastor's

petition.[420] But frown and head-toss and open disapproval of the pews

neither stopped the prayer, nor prevented its answer. The prayer was

offered; Heney did not die.

Within an hour after Heney had been shot down, three of the foremost

lawyers at the California bar, Hiram W. Johnson, Matt I. Sullivan and

Joseph J. Dwyer, volunteered their services to take up the struggle for

civic righteousness at the point to which Heney had carried it.

But the attorneys for Ruef, having exhausted every other delaying move,

saw in the shooting of Heney opportunity for further delay. They

accordingly moved for change of venue. Failing here, a motion was made

for thirty days' delay. This being denied, Ruef's attorneys moved that

the jury be dismissed. This move failing, an attempt was made to examine

the twelve men in the jury box to determine whether the shooting had

prejudiced them and unfitted them for jury service. These many motions

were backed up with affidavits containing all that had been said at the

public meetings, and all that had been printed in San Francisco

newspapers, since Heney had been shot. The reading of the voluminous

affidavits consumed hours. The prosecution filed answering affidavits

which also consumed time. But Judge Lawlor finally denied all the

contentions of the defense and ordered the trial to proceed.

During these proceedings, the jury had been locked up in charge of the

regular court officials. The jury had not been in the courtroom when

Heney was shot, and from the moment of the shooting had been shut away

from the public. But lest the jury had learned something of the

shooting, and to account for Heney's absence, Judge Lawlor deemed it

incumbent upon him to notify them that Heney had been shot, and to

admonish them that the transaction so far as the court, the jury, the

defendant, the People of the State, the counsel, and all other interests

interested or involved in the trial were concerned was to stand as

though it had not occurred. This Judge Lawlor did.[421]

The trial itself was not unlike the other graft trials. The Supervisors

told the story of their bribery. Gallagher told how Ruef had given him

the money, and how he had given it to Supervisor Furey. Furey testified

that he had received the money from Gallagher because of his vote to

grant the overhead trolley permit to the United Railroads. The story had

by this time become sadly familiar to the people of San Francisco.

The trouble experienced with witnesses at former trials characterized

this trial as well.

Alex. Lathem, for example, at one time Ruef's chauffeur, disappeared

from the State about the time the trial was to begin. He was brought

back from Oregon under extradition, charged with having accepted a bribe

to leave the jurisdiction of the court. On the stand,[422] Lathem

repudiated important evidence which he had given before the Grand Jury,

and to which he had made affidavit. As a minor incident of the graft

trials, Lathem, because of this incident, was indicted for perjury.

But in spite of the backwardness of certain of its witnesses, the

prosecution succeeded in getting its case before the jury. The jury

found Ruef guilty as charged. He was sentenced to fourteen years' penal

servitude at San Quentin prison.

FOOTNOTES:

[405] Seventy-two days were required to impanel the jury before

which Ruef was tried, fifty days being devoted to actual court

work. There were summoned 1,450 talesmen, of whom 446 were

examined. Six jurors were denied their freedom for forty-two

days before the jury was completed. Blake, arrested for

jury-fixing, was trapped, tried and convicted before the jury

was completed. Two of Ruef's attorneys were, during the

impaneling of the jury, indicted for alleged connection with

Blake's attempt to influence the jury in Ruef's favor.

[406] There is, so far as the writer can find, no evidence that the

Graft Defense or its agents employed Haas to kill Heney any

more than there is evidence that the Graft Defense or its

agents employed Pauduveris to murder the pivotal witness,

Gallagher. But that Haas was urged to kill Heney because of

the exposure of Haas's previous record at the first Ruef trial

is well established.

"I was urged frequently," said Haas in a confession made to

Langdon and Burns, "to kill Heney by certain persons whose

names I will not tell you, and I also talked to other people

about killing Heney and was advised by them not to do it. In

addition to that, certain persons approached me several times

and referred to the time I was thrown off the Ruef jury,

saying: 'I'd never stand that sort of a roast,' and 'I'd kill

a man who did that to me,' and similar things."

Who urged Haas to do this thing, and what was their motive?

Haas alone could have answered the first question. But the

bullet that ended his life sealed his lips forever.

Of Haas's purpose in getting on the first Ruef jury we have

some testimony. Joseph Brachman, a close associate of Ruef,

who had known Haas for nearly a quarter of a century, said in

an interview published in the San Francisco Call, November 15,

1908:

"When Ruef was on trial in the Parkside case, on the bribery

charge, I heard that Haas had been called on the jury panel.

At that time I was frequently in consultation with Ruef, every

day, in fact. But I was afraid to go to Ruef with what I knew

of Haas, so I went to one of his lawyers--I won't say which

one--and told him of the record of Haas. I told him that Haas

was a bad man and an ex-convict. I said that Ruef should

challenge him.

"I was in court the day that Haas qualified and passed into

the jury. Again I told his attorney that Haas was a bad man,

to get rid of him, but nothing was done. When Heney produced

the evidence showing that Haas was an ex-convict I was in

court, also. I met Haas after he had been disqualified. Haas

told me the reason why he stayed on the jury and why his

record was not made public by the defense of Ruef. He told me

that he expected $4,000 from Ruef for his services on the

Parkside case jury. He said that he was hard up, that he was

in debt, that he owed money on his saloon and that if he had

been permitted to stay on the jury he would have been able,

with the $4,000 to be paid him by Ruef, to clear himself of

debt.

"He also told me, Haas did, on the day that he was

disqualified, that he was going to 'kill one of the

prosecutors.' He did not say which one, but he frequently

repeated to me, that he was 'going to get one of the

prosecutors.' I met him many times and often, frequently he

told me that he was 'going to get one of the prosecutors.'"

[407] Physicians state that Heney's escape from death was by a

hair's breadth. Had the bullet, striking as it did, taken any

other course death would have been inevitable.

[408] See Chapter XXIII.

[409] "Will they," demanded The Call the morning after Heney had

been shot down, "stop at nothing? Are not stealing, perjury,

bribery, dynamiting, murder, enough? Must the course of

justice in this community run the gamut of violence, as well

as of slander and pettifogging obstruction?

"Apparently it must. But there is at least no longer any

reason to doubt where the responsibility lies. A bare chance,

the momentary tremor of an assassin's hand, may have saved the

life of Francis J. Heney to this community. There will be no

tremor in the finger of scorn that points past the miserable

wretch that did the shooting to the men that inspired it. A

worthless crank, of course. It always is. Dirty hands for

dirty work. But softer hands and keener brains plan it. And

the community will waste no wrath on the miserable tool, now

cowering in jail. It was not he who has dogged the steps of

Francis J. Heney these two years with hired thugs. It was not

he who has filled the courtrooms with professional ruffians.

It was not he who dynamited Gallagher--or hired it done. Least

of all was it he who made a joke of that crime and sought to

make a joke and a byword of the heroic Heney--'poor Beany.'"

[410] While Heney lay wounded at San Francisco, and Haas lay dead,

another tragedy growing out of the Graft Prosecution was being

enacted on the other side of the globe. John Krause, who had

been T. V. Halsey's assistant at the time of the Pacific

States Telephone briberies, killed himself on the steamer

Adriatic as it plied from Cherbourg, France, to Queenstown,

Ireland. Krause had disappeared from San Francisco in

December, 1907. It was never charged that Krause was a

principal to the bribery transactions, or that he had even

guilty knowledge of them. His only possible connection with

the graft cases was as a witness against the Pacific States

Telephone and Telegraph Company officials.

[411] "A great work," said Hiram W. Johnson, in an interview printed

in the San Francisco Call, November 14, 1908, "undertaken and

accomplished, though not yet wholly completed, has been

retarded for a day by an assassin's bullet. When Frank Heney

fell today while in the performance of his duty, decency and

the right were stricken. For two years this one man has

persevered in the right, for right's sake alone. Without

compensation, sacrificing a great legal practice, giving

without complaint the best years of his life, Francis J.

Heney, facing all the combined forces of evil in this

community and State, has stood unflinchingly at his post,

making the fight that is the fight of all of us. Daily abuse

and vilification have been his portion and reward. In spite of

it, where a weaker man would have faltered, Heney has

persevered. He has done in seeking to make equality before the

law an assurance in this State, all that a strong and a brave

man could do. Were he to pass away tonight he'd need no other

monument than the work he has done. For generations his expose

of rottenness in San Francisco, his prosecutions of the

criminal rich will live and make this city and State better.

He has been shot simply because he was fighting for the right.

Not alone has he been wounded; but the community and the

commonwealth have suffered the injury.

"We who were with him in the early days of the struggle, and

knew his every mood; who saw him at his work day and night,

and loved the qualities that made it possible for him to

accomplish what he has, can not express our horror and

indignation and anger at his attempted assassination. May God

speed his recovery."

[412] See Chapter IV.

[413] The Citizens' League of Justice was organized immediately

after the attempted assassination of Witness Gallagher by

means of dynamite. Those immediately connected with the

prosecution, it had been amply demonstrated, were risking

their lives. In the Citizens' League of Justice was proposed

an organization, entirely separate and apart from the graft

prosecution, to back the prosecution. The idea originated with

Bruce Porter, the artist. Rev. Charles N. Lathrop, of the

Church of the Advent, became interested. The initial meeting

was held at Father Lathrop's house. While the League had no

connection with the prosecution, it became most effective in

support of the prosecution group. Professor George H. Boke, of

the University of California Law School, accepted the

hazardous position of the League's executive officer. In spite

of the fact that he was jeopardizing his position at the State

University by his course, Professor Boke did much effective

work in bringing the conditions which confronted San Francisco

squarely before the public. Matt I. Sullivan, who afterwards

became Chief Justice of the State Supreme Court, served as the

League's president.

[414] Dr. Taylor's observations on this point were as follows: "Let

us see to it that no matter who else breaks the law, that we

shall not break it. In this crisis, we must, above all things,

keep our heads. We must, above all things, while resolute and

determined, be self-restrained.

"San Francisco has had many afflictions. She now has this

additional affliction of the assassination of one who stood

for the people's rights; of one who was fearlessly engaged in

the important and priceless business of civic regeneration,

and who, while in the act of performing the greatest of all

duties as a citizen, was laid low by the bullets of an

assassin.

"But let us not add to the affliction the affliction of

breaking the peace. Let us, above all things, as I have said,

keep ourselves restrained. Let us not add to the afflictions

that are upon us the affliction of mob law. Let us go about

our business, whatever we may do in this matter, in a peaceful

way, but in a resolute way, in a determined way. I am

satisfied that the officers of the law will do their duty. I

am satisfied that the judges will do their duty, and that our

juries will do their duty. And if they, each one of them,

perform faithfully the functions upon his part, we have

nothing to fear, and we shall see that those who are guilty

are punished and are rightfully punished."

[415] The following resolutions were adopted at the meeting:

"Whereas, following unparalleled disaster from the elements

our unfortunate city fell upon times of unprecedented civic

corruption, necessitating the tearing down of the wreckage of

government, and the rebuilding of our civic structure on

foundations of law and justice; and

"Whereas, the first labor necessary was the prosecution of

criminals, bribe givers, bribe takers and brokers in

corruption; and

"Whereas, the prosecution, beset with many difficulties,

obtained its evidence in the only way that such evidence could

be obtained; and

"Whereas, in the subsequent attempt to convict the guilty

there was developed a vast conspiracy to thwart the ends of

justice, which conspiracy has involved social boycott and

unjust and coercive business pressure, has openly employed

thugs to terrorize the officers of the law, has employed

lawyers to browbeat and insult witnesses, prosecutors and the

judges on the bench, and to waste the time and money and to

exhaust the patience of the people by useless and technical

delays, and which conspiracy has moreover involved so large a

part of our public press that many of our people have been

deprived of the truth and have been fed upon poisoned lies;

and

"Whereas, up to the present time the law as administered has

proved inadequate to secure that prompt and certain

application of justice, which must be the basis of social

order; and

"Whereas, out of this conspiracy grew plots to kidnap, and

actual kidnapping; plots to bribe juries, and actual jury

bribing; plots to assassinate witnesses and an attempt to

assassinate a witness by dynamite; and out of it also grew

plots to assassinate the prosecutors, and the attempted

assassination of the bravest friend that San Francisco has

known, Francis J. Heney;

"Therefore be it resolved, that here and now we declare our

unwavering allegiance to law, and that if the criminal law be

found to be so framed as to permit the escape of civic

malefactors we shall see to it that the law be amended; that

if the lax administration of the criminal law be due to

misinterpretation by judges, we shall see to it that men be

placed upon the bench capable of construing the law.

"Be it further resolved, that we call upon the Supervisors to

provide adequate funds for the District Attorney's office to

secure the detection, prosecution and conviction of criminals,

high or low, and the full protection of officers in the

discharge of their duties;

"Be it further resolved, that we demand the truth from our

public press, and shall see to it that our people are informed

of the facts that they may judge of those who by lying and

misrepresentation are perverting public opinion.

"Be it further resolved, that we solemnly assert our utmost

confidence in the law-abiding character of our people; that we

here declare our gratitude for the inestimable service

rendered us by the office of the District Attorney in the

restoration of reputable and responsible government; and that

we stand firm in our determination to indorse and to aid that

office to the end that all persons accused of crime shall be

fairly tried and their guilt or innocence be finally

established in accordance with the provisions of law.

"To these ends we pledge ourselves, that our beloved city may

be purged of boodlers and grafters and be a better home for

ourselves and our children.

"Be it further resolved, that we send word to our wounded

champion, that his labors for us are appreciated and that his

sufferings for our sake are not in vain."

[416] See Chapter IV.

[417] Captain Duke, at an investigation which followed, testified:

"At Mr. Burns's suggestion, we took Haas into the room off the

courtroom occupied by the stenographers. First we made a

slight search, and then I said to Mr. Burns: 'Are you sure we

searched him thoroughly?' and we went over him again. I felt

down to his shoes. I always search a man that way, for when I

first went on the police force I had an experience with a

Chinaman, whom Policeman Helms, who was recently killed, and

myself had arrested. We found a dagger in his shoe, and since

then I have always examined a man's feet. I will state that I

felt the man's shoes the other day after they had been put on

the corpse and the derringer placed in them, and from the

bulge I noticed then I am sure that I would have felt the

weapon had it been in his shoe at the time of the arrest. We

were looking for anything that we could find. From something

the man said--that he didn't care if he lived or not--I

thought that he might make an attempt to commit suicide.

"It would have been an utter impossibility for the derringer

to have been anywhere else than in the man's shoe," Duke

continued. "If it was in his shoe it would have been under the

stocking and the man would have had it there 29 hours before

he killed himself. It would have made a mark on the flesh or

interfered with his walking, and he did not even limp. If the

cartridges had been in the shoe they could have got under the

foot and the man could not have walked."

[418] Neither press nor defending lawyers were spared in the

criticism. "We have," said Rev. Bradford Leavitt of the First

Unitarian Church at San Francisco, "dreamed that we were

living under the government of laws, whereas we were living

under the government of newspapers hired by corrupt

corporations, and the enemies of civic decency."

"The lawyers who are paid to thwart this Graft Prosecution,"

said Charles S. Wheeler, "have proceeded with deliberate plan

to destroy the effectiveness of the prosecution by withdrawing

the support of the people. In this way they have reached the

home of every individual. They have brought cunningly into the

home their hireling periodicals, and a press misguided or

worse, has been largely instrumental in aiding their desire."

[419] President Roosevelt's telegram to Mr. Spreckels was as follows:

"White House, Nov. 19, 1908.

"To Rudolph Spreckels, San Francisco.

"Am inexpressibly shocked at the attempted assassination of

Heney and most earnestly hope he will recover. The infamous

character of the would-be assassin no less than the infamous

character of the deed call attention in a striking way to the

true character of the forces against which Heney and you and

your associates have been struggling. Every decent American who

has the honor and interest of the country at heart should join

not only in putting a stop to the cause of violent crime of

which this man's act is but one of the symptoms, but also in

stamping out the hideous corruption in which men like this

would-be assassin are bred and flourish, and that can only be

done by warring as Heney has warred relentlessly against every

man who is guilty of corrupt practices without any regard to

his social standing and his prominence in the world of politics

or the world of business. I earnestly hope that Heney will

recover, and I give utterance to what I know would be Heney's

wish when I say that I earnestly hope that whether he recovers

or not there be no faltering in the work in which Heney has

been so gallant and efficient a leader.

"9:10 A. M.

"THEODORE ROOSEVELT."

President Roosevelt telegraphed Mrs. Heney as follows:

"White House, Nov. 14, 1908.

"Mrs. Francis J. Heney:--Am inexpressibly shocked at news of

the attempted assassination of Mr. Heney and am greatly

relieved at the news this morning that he is doing well and

will probably recover. I hope you will accept my deepest

sympathy. Like all good American citizens, I hold your husband

in peculiar regard for the absolutely fearless way in which he

has attacked and exposed corruption without any regard to the

political or social prominence of the offenders or to the

dangerous character of the work. Your husband has taken his

life in his hands in doing this great task for our people and

is entitled to the credit and esteem, and above all, to the

heartiest support of all good citizens. The infamous character

of the man who has assassinated him should add not only to the

horror and detestation felt for the deed, but also to the

determination of all decent citizens to stamp out the power of

all men of his kind.

"THEODORE ROOSEVELT."

[420] Grace Episcopal Church is attended by many of the most

prominent citizens of San Francisco. At the time of the

shooting of Heney, several prominent Episcopalians were under

indictment. In spite of the intense feeling in his

congregation, against the prosecution, Rev. Mr. Evans

continued to give the work of the District Attorney's office

his approval. An era of petty persecutions for Mr. Evans

followed. He was finally brought to resign his pastorate and

accept a less important charge at Palo Alto.

In this connection it is interesting to note that in spite of

powerful opposition to the prosecution of prominent

Episcopalian laymen, the Convocation of the Church held at San

Francisco in August, 1907, adopted the following resolutions

unanimously:

"Whereas, Our government is imperiled by the criminal use of

wealth to influence legislation; and

"Whereas, Existing conditions in San Francisco present a moral

issue; therefore be it

"Resolved, That, in the judgment of this convocation, bribery

is always a crime deserving punishment, and, furthermore, that

duty commands every Christian man to exert himself to foster a

public recognition of the quality of the crime."

[421] Judge Lawlor's statement to the jury was as follows:

"Gentlemen of the Jury: I have a few words to say to you

before this trial is resumed at this time. Since you have been

sworn as jurors the Court has on many occasions, with

elaborateness and repetition, sought to convey to your minds

an understanding of your duties as jurors in this case. It has

been pointed out to you that to the charge which is on trial

here, the defendant, Abraham Ruef, has interposed a plea of

not guilty. That charge, considered in connection with that

plea, puts in issue, for the determination of this Court and

jury, the allegations of that charge. You have been sworn as

jurors to pass upon the facts in the case and to apply those

facts, when resolved from the evidence, to the rules of law

which the Court shall finally state to you to govern you in

the rendition of your verdict. These many admonitions, as it

has also been pointed out to you from time to time, are

founded upon a provision of the law which makes it the duty of

the Court to administer those admonitions.

"The purpose of the law requiring those admonitions to be

given is that when a jury is sworn to try an action it shall

divest itself of all matters which theretofore might have

found lodgment in the minds of the members and to proceed to

render a verdict solely upon the matters which shall be

brought to the attention of the jury in the due course of

judicial proceedings. These constant reminders of that duty

are calculated to keep the sense of jurors alive to a full

compliance therewith.

"I doubt if anything I could say at this time would tend to

amplify what has already been declared from time to time in

that behalf, but in view of a transaction that occurred in the

courtroom on the afternoon of Friday, November 13, 1908, the

Court deems it proper to re-emphasize with all the power that

it may command the duty of the jury to proceed to the further

discharge of its duty at this time in utter disregard of that

transaction. The Court realizes that the jurors may have heard

or seen a part of that transaction, or that phases of that

transaction may have been communicated to the jury. Now,

without regard to what extent that assumption may be

justified, the Court desires the jurors to in every manner

relieve their minds of any impression or anything that they

have heard, or anything that has been said, or anything that

has been communicated, or that shall hereafter he communicated

concerning that transaction; in other words, we are to resume

this trial at this time at precisely the point that had been

reached when the recess, during which the transaction

occurred, was declared.

"I may state to you generally, that on that occasion Mr.

Francis J. Heney, the Assistant District Attorney, was shot by

a man bearing the name of Morris Haas; that Mr. Heney was

wounded as a result of that assault. Happily the injury was

not a serious one, and at this time there is every indication

that Mr. Heney will recover from that injury.

"Now, that transaction, so far as this Court and the jury, the

defendant at the bar, the People of the State of California,

the counsel and all other interests interested or involved in

this trial are concerned, is to stand as though it had not

occurred; no person is to be charged with any responsibility

for that transaction; this is not the place for the

consideration of that transaction.

"It may be stated also to you that the assailant afterward

took his own life while he was confined in the County Jail

upon his arrest in connection with that transaction.

"And neither matter, I repeat, should find any place in your

minds. It should not in any manner form anything in the nature

of bias or prejudice concerning anyone.

"This Court would despair of having the law administered upon

the charge at bar if the jurors did not in every manner comply

with the admonition of the Court to exclude that transaction

entirely from their minds."

[422] Lathem testified before the Grand Jury that about the time the

bribe money had been passed he had driven Ruef to the Hirsch

Bros. store, where Ruef had obtained a shirt box. He had then

driven Ruef to the offices of the United Railroads. Ruef had

entered the offices with the box. He had come out later with

the box and a package. With box and package he had gone to his

own office, and from there, taking the box and package with

him, he had been driven to the safe deposit vaults of the

Western National Bank.

Lathem did not testify before the Grand Jury until after Ruef

had confessed, and then Lathem testified with Ruef's consent.

It is a significant fact that Lathem was sent out of the State

the first time not in the interest of Ruef but of Tirey L.

Ford, head of the United Railroads law department. Lathem went

to Colorado on an automobile trip with the father-in-law of

Luther Brown, one of the United Railroad detectives. Lathem's

wife was permitted to accompany them in the automobile. They

stopped at the best hotels. Lathem was paid $150 a month.

The importance of Lathem's testimony lies in the fact that at

the time he took Ruef with the shirt-box to Ford's office,

Ford had just received from the Relief corporation officials

$50,000 in small currency, which made two large bundles, which

were carried to Ford's office by Abbott and himself and placed

in Ford's desk. This was at the noon hour. A little after one

o'clock Ruef went to the Western Pacific Safety Deposit vaults

where he then had a deposit box. The cubic contents of this

box was not sufficient to accommodate those two bundles. Ruef

at that time secured two additional boxes. The cubic contents

of all three boxes together was just sufficient to nicely

accommodate said two bundles.

The theory of the prosecution was that Ruef carried bribe

money in box and package.

At the trial, Lathem stated that the story which he had told

before the Grand Jury was not true.

CHAPTER XXVI.

THE CALHOUN TRIAL.

The trial of Patrick Calhoun for offering a bribe to Supervisor Fred

Nicholas began immediately after the holidays, following the Ruef

trials. The trial brought into play all the machinery of the opposition

at its worst to the prosecution. At all points the defense was carried

on on a larger scale than at the former trials. There were more and

better lawyers employed by the defendant; there were more thugs in

evidence in the courtroom; there was greater activity on the part of the

detectives, spies and agents engaged to meet the efforts of the men

working under Detective Burns.

Due largely to the activity of this army of opposition to the

prosecution, the weakness of the methods of enforcing the criminal law

was emphasized even more than at the other trials, and the defects shown

up more glaringly.

To secure a jury to try Ruef, for example, 1450 talesmen were called.

This was regarded as a record. But before a jury had been secured to try

Calhoun 2370 veniremen had been called into court, and no less than 922

examined. Thus, for every juror who sat at the Calhoun trial, 197

talesmen were called, and seventy-seven were questioned by the

attorneys.

The estimated number of words contained in the transcript of the

examination of these talesmen was in millions. To conduct this

examination three months were required. The securing of a jury to try

Ruef occupied the time of the court for two months only. But it must be

noted that the securing of the Calhoun and the Ruef juries occupied five

months--to try charges contained in two indictments, whereas in all the

graft cases 160 indictments had been brought.

The defendants who preceded Calhoun to trial had an army of attorneys to

represent them. But Calhoun's line of legal representatives was quite

double that of any of his fellow graft defendants who had been caught in

the prosecution drag-net.

Prominent in Mr. Calhoun's defense appeared A. A. Moore, Stanley Moore,

Lewis F. Byington, Earl Rogers, J. J. Barrett and Alexander King,

supported by the giant of the California bar, Garret McEnerney. That the

master mind of Garret McEnerney was directing many of the graft defense

cases had been intimated from time to time, but there is no question

about McEnerney's part in the defense of Calhoun.

And opposed to the strongest men of the California bar, The People had

two representatives. One of them, Heney, was serving without pay, was

still a sick man not having fully recovered from his wound inflicted but

a few months before, and worn out from the continued effort of a

three-years' fight to get at the root of municipal corruption in San

Francisco. The second, a regularly employed Deputy District Attorney,

John J. O'Gara, was receiving $300 a month for his services. It is not

unlikely that some of the best of the attorneys for the defense, for

defending Mr. Calhoun, received as much in a day. Compared with the

army of lawyers for the defense, the representation of The People was

pitifully small.

Through the long, grueling contest of the trial, lasting for five months

and eight days,[423] Heney and O'Gara were kept under constant strain,

while the defendant's attorneys relieved one another when their labors

became irksome.

The bulk of the hammering and of the technical quibbling was directed

against Heney. Heney, still suffering from the effects of his wound,

received at the Ruef trial, worn-out, over-worked, harassed in the

public prints, would at times become thoroughly exasperated. Every

indication of impatience on his part, or of temper, was made subject of

attack in the opposing newspapers.[424] These attacks, long persisted

in, did their part in the general campaign to weary the public with the

prosecution, and undermine confidence in Heney.

The examination of talesmen for jury service showed the results of this

long-continued campaign. Many talesmen announced their sympathy with the

defendants, and deplored the prosecution, which they appeared to

believe had brought shame upon and injured the city. Some went so far as

to call the prosecution of Calhoun an outrage.[425] Others intimated

that the giving of bribe money might have been justifiable.[426] Such

expressions, coming from men of average intelligence and ordinarily

law-abiding, showed conclusively that the persistent efforts of the

defense to poison the public mind against the prosecution was at last

bringing results.

But after months of effort a jury was secured to hear the case and the

trial began.

Heney, in his opening statement to the jury, set forth the prosecution

expected to prove that Ruef authorized James L. Gallagher to offer the

bribe to Supervisor Nicholas; that Ruef afterwards gave the money to

Gallagher to pay Nicholas; that Calhoun authorized Ruef, either through

Tirey L. Ford, or personally, or both, to make the offer to Gallagher

and to authorize Gallagher to make the offer to Nicholas.

The prosecution showed by Gallagher that the offer had been made to

Nicholas and to every member of the Board of Supervisors with the

exception of Rea. In this, Gallagher was corroborated by the

Supervisors. Not only had the offer been made, but the bribe money had

been paid.

Gallagher testified that he had received $85,000 from Ruef to be

distributed among the Supervisors for their votes which gave the United

Railroads its overhead trolley permit, and that, after keeping out

$15,000 for himself, he had distributed the money among them, giving to

Supervisor Nicholas $4000 of the amount.

Supervisor Nicholas testified that Gallagher had offered him the bribe

and had paid him the money.

By the officials of the United States Mint, the prosecution showed that

$200,000, about the time of the bribery, had been turned over to General

Tirey L. Ford, on order from Mr. Calhoun. The $200,000 could not be

accounted for by the available books of the United Railroads. Ruef and

Ford were shown to have been in close touch with each other during the

period.[427]

But nobody could be found who had seen Ford pass $200,000 to Mr. Ruef.

Here was, perhaps, a weak link in the prosecution's chain of evidence.

Mr. Calhoun did not, however, put General Ford on the stand to tell what

he did with the money. Neither did Mr. Calhoun put Mr. Ruef on the stand

to testify as to the source of the $85,000 which Ruef gave to Gallagher

to pay the Supervisors for their votes by which the trolley permit was

awarded to the United Railroads.

But, however weak the link between Ford and Ruef, there was no weakness

in the link between Calhoun and Ford. By evidence that could not be

disputed, the prosecution showed that Ford got $200,000 through Calhoun.

Frank A. Leach, Director of the United States Mint at San Francisco,

testified that Calhoun, with General Ford, had called upon him at the

Mint sometime between May 22 and May 24, 1906.[428] Calhoun called,

Leach testified, to ascertain how $200,000, which had been transferred

from the East to his credit."[429] could be drawn out in certain sums

in favor of such persons as he might designate.

Leach testified he had furnished Calhoun with the desired information.

Ford afterwards appeared at the Mint with an order from Mr. Calhoun for

$50,000,[430] which was paid to him. Later, Calhoun telegraphed to Leach

from Cleveland, Ohio, to pay Ford a second $50,000; and still later the

$100,000 remaining.[431]

The Mint officials paid Ford the money in accordance with Mr. Calhoun's

directions. Mr. Calhoun offered no evidence to show why this

considerable sum was paid to General Ford, or what General Ford was

supposed to have done with it. Mr. Calhoun, when the last of the

$200,000 had been turned over to General Ford, had given Mr. Leach a

receipt[432] in full for the amount.

But what was quite as extraordinary as this direct evidence against Mr.

Calhoun was the offer of the District Attorney to meet the defense's

charges and insinuations against the prosecution. Rudolph Spreckels was

called to the stand. The attorneys for the defense were invited to ask

him any questions they saw fit.

"From the time we attempted to impanel this jury," said Heney, in

extending this invitation, "the attorneys for the defendant have been

attempting to try Rudolph Spreckels, James D. Phelan and God knows who

else. By insinuations they have been endeavoring to get into the mind of

this jury the idea that Mr. Spreckels was back of this prosecution for

malicious purposes and for gain, for profit, to get hold of the United

Railroads. I told them when they were making those insinuations that I

proposed to throw down the bars to them; that I proposed to force them

to the proof; that I would put the witnesses upon the stand and would

not object to a single question asked them.

"The witness, Spreckels, is now upon the stand, and we won't object to

their asking him anything on earth, from the time he was born down to

the present day, to the present minute."

One of the most frequent charges which had been made against the

prosecution was that it had expended money wrongfully. Rogers asked for

a statement of the prosecution's receipts and disbursements.

Mr. Spreckels announced his willingness to account for every dollar

expended, but refused, until he should be directed by the Court, to give

the names of the contributors to the fund.[433]

"Will you," broke in Heney addressing Calhoun's lawyers, "produce an

itemized account of moneys expended in the defense of these matters?"

"I beg your pardon?" questioned Rogers.

"I say," said Heney, "will you produce an itemized account of moneys

expended in opposition to these prosecutions?"

The defense did not seize this opportunity to clear itself of the not

unreasonable suspicion that money had been used to influence jurors to

vote for acquittals; to get witnesses out of the State; to corrupt

agents of the prosecution; and perhaps to attempt murder. On the

contrary, the attorneys for the defense denounced Mr. Heney's suggestion

as "misconduct."

Mr. Spreckels stated his willingness to furnish itemized statement of

the prosecution's expenditures. This he did. Furthermore, he submitted

himself to rigorous cross-examination regarding the items of his

account. But the clever attorneys for the defense uncovered nothing upon

which charge of wrongful expenditure or questionable methods could be

based.[434]

The charge that Spreckels had engaged in the Graft Prosecution to injure

the United Railroads came to as sorry an ending. By competent witnesses

it was shown that the prosecution had been planned, and the preliminary

work done, before the bribe-money in the trolley deal had passed.

Furthermore, it was shown that Spreckels had offered to assist Calhoun

to have the time of his franchises extended, if such extension were

necessary for practical installation of the conduit electric system,

asking only that the unsightly poles and overhead wires be not inflicted

upon the city. It was only when Calhoun, dealing with a Board of

Supervisors suspected of corruption, showed conclusively that he

proposed to install an over-head trolley system, whether the people

wanted it or not, that Spreckels and his associates organized their

traction company. It was shown that the object of the organizers of the

company was to demonstrate that the conduit system was practical for San

Francisco. And, finally, the articles of incorporation under which the

company proposed to operate, provided for the transfer under equitable

arrangements of the proposed new lines to the city, should the city wish

at any time to take them over. Mr. Spreckels and his associates were

shown not to have had desire or inclination to engage in the street-car

business. But it was shown that they proposed to fight for what they

considered the best interests of the city of their birth and residence.

Another frequently-made charge had been that Heney was the attorney for

Rudolph Spreckels, directing a privately-conducted prosecution.[435] As

a matter of fact, Langdon, and not Heney, headed the prosecution, and

Langdon let it be known at all times that he was the final arbitrator in

all questions growing out of the prosecution. And at no time did he fail

to assert himself. But at the Calhoun trial, the fishing expeditions in

which the defense indulged, brought the facts out convincingly that

Heney, far from being in Spreckels' employ, or directly or indirectly

receiving money from him for graft-prosecution services, or any other

services, was giving his time to the city, without reward or hope of

reward.

Thus, point by point, the allegations which the graft defense had for

three years been making against the prosecution, were shown to be

without foundation in fact. The bars were down, as Heney put it. Rudolph

Spreckels and others who had made the prosecution possible, were under

oath, and were prepared to answer any question that might be put to

them. The ablest lawyers, cunning in cross-examination, selected,

indeed, for their craft and skill in searching out the innermost secrets

of witnesses, were there to question.

But not one statement reflecting upon the purposes of the prosecution,

nor of its motives, nor of its methods, was brought out. The graft

defense, free to question as it would, was unable to justify the

insinuations of baseness of purpose and method; nor to justify its

loosely-made charges against the prosecution.[436]

Indeed, the attorneys for Mr. Calhoun even resisted full discussion of

Mr. Spreckels' motives.

The intimation, so broad as to approach positive declaration, had been

made repeatedly that Mr. Spreckels had inaugurated the graft prosecution

for the purpose of injuring Mr. Calhoun and the properties which he

represented--the United Railroads. On re-direct examination, Mr.

Spreckels was asked by the attorney for the State whether, at the time

he had first discussed investigation of graft conditions in San

Francisco with Mr. Heney, he had had any idea of investigating Mr.

Calhoun. Mr. Barrett, representing the defendant, strongly objected to

this line of questioning.[437]

After a wrangle between the attorneys as to the matter of the witness's

motives, Spreckels was permitted to make a brief statement to the Court.

"My motives," he said, "have been inquired into, and I have indicated to

Mr. Rogers (Calhoun's attorney) that as far as I am concerned the bars

are absolutely down; I am willing to take the judgment of this community

as to motives, as to my purposes and as to the truthfulness of my

statements made here."

Mr. Spreckels was finally permitted to answer the question. He answered

in the negative.[438]

The defendant placed no witnesses on the stand. The explanation of their

peculiar position which the United Railroads officials were looked upon

to make when opportunity offered was not made. The denials which they

had for three years been indignantly making through the newspapers were

not stated under oath.[439]

The trial resulted in a disagreement. According to published statements,

purporting to come from members of the jury, on the first ballot four

jurors stood for conviction, eight for acquittal; on the second, nine

for acquittal, three for conviction. On all the other ballots the jurors

stood ten for acquittal and two for conviction.[440]

Immediately after announcement of the verdict,[441] the District

Attorney attempted to bring Calhoun to trial for the alleged offering of

a bribe to Supervisor John J. Furey. This the defense resisted. The

community was filled with the suggestion that the Calhoun jury, having

failed to agree, the costly graft trials should be brought to an

end.[442]

Nevertheless, Calhoun's second trial was begun. But before a jury could

be secured, Francis J. Heney had been defeated for election as District

Attorney. This meant the breaking down of the graft prosecution. The

District Attorney consented to continuance of the case until the new

administration should take charge. The case was not pressed by Mr.

Langdon's successor, and finally, with the other graft charges, was

dismissed.

FOOTNOTES:

[423] From January 12, 1909, to June 20, 1909.

[424] Earl Rogers showed himself particularly clever at goading. His

ability in this line was shown to advantage also, at the trial

of Clarence Darrow, charged with jury fixing at Los Angeles,

whom Rogers defended. The Fresno Republican in comparing the

two cases said, in its issue of July 12, 1912: "When Heney

tilted, as prosecutor against Earl Rogers as an apologist for

crime, he was the 'wild man of Borneo,' to the more staid and

polished members of the San Francisco bar. But now that

Fredericks and Ford, prosecutors of Los Angeles, lost their

tempers under the goadings of this same Rogers in the Darrow

case, nothing is said about the wild man of Borneo. Fredericks

and Ford, unlike Heney, are recognized as the socially elect

of the profession, but Heney in the wildest excitement of the

Calhoun trials, never tried to throw an ink bottle at Rogers,

as Ford tried to do the other day. Plainly, as a matter of

social etiquette, it depends upon whose ox Rogers gores."

[425] See footnote 269.

[426] The Chronicle, as early as July 10, 1907, punctured the theory

that the bribing of public servants is justifiable.

The Chronicle said: "In the examination of a talesman in Judge

Lawlor's court on Monday an attorney for the defendant charged

with the crime of bribing city officials made the statement

that San Francisco is divided on the subject of punishing men

who have committed the offense named. He said: 'You know, of

course, that San Francisco is divided on this graft question.

Half in favor of the prosecution, and, say, half contrary

minded.' Possibly he believes that this is true, but there is

absolutely no foundation for the assumption. There is no

evidence on which to base such a statement, and it would not

have been made if there was any possibility of determining its

truth or falsity by some simple test.

"It is doubtless true that there are plenty of men in this

community who regard the crime of bribery lightly, and are

ready to defend it on the ground that laxity in the conduct of

municipal affairs made it necessary to resort to it or abandon

all enterprise. But the great majority of citizens take the

sound view that both briber and bribed are equally guilty and

equally deserving of punishment, and utterly refuse to accept

the excuse that the corporations which have been

systematically debauching city officials were forced to that

course. They know that the eager desire to secure advantages

is at the bottom of the corrupt condition of our municipal

affairs, and they feel that unless examples can be made of

those who have shown a willingness to profit by the greed and

turpitude of those elected to office the practice of bribing

will be again resumed and continued as long as there is

anything to be gained by the pursuit of criminal methods.

"Even if it were true that the community is evenly divided it

would be outrageous to plead that fact as a justification for

the commission of criminal acts. If San Francisco should be so

lost to shame that nine-tenths of her population regarded

bribery with tolerance, it would be no less a crime, but there

would be infinitely more reason for striving to punish

offenders of that character to save the city from the moral

degradation involved in the acceptance of the idea that it is

excusable to defy the laws by debauching public officials."

At the time of Calhoun's trial, however, The Chronicle read

talesmen who sided with the defense no such lecture.

[427] See Chapter XV, "The Ford Trials."

[428] The trolley-permit was granted May 21, 1906.

[429] The letter placing $200,000 to Calhoun's credit read as

follows:

"Treasury Department, Washington, May 22, 1906. Superintendent

of the United States Mint, San Francisco, Cal. Sir:

Confirmation is certified to a telegram sent you this day, in

substance as follows:

"'Pay to Patrick Calhoun, President United Railroads,

$200,000; to Lachman and Jacobi, $12,500; to Beech Thompson,

$20,000; to Canadian Bank of Commerce, $250,000; on account of

original certificates of deposit Nos. 5251, 5252, 5253 and

5267, issued by the Assistant Treasurer of the United States,

New York city. In all amounting to $482,500.

"'Pay to master California Lodge. Number 1. A. F. and A. M.,

$319.65 on account of original certificate of deposit No. 112,

issued by the Assistant Treasurer of the United States,

Chicago.' Respectfully,

"CHARLES H. TREAT,

"Treasurer of the United States."

[430] The telegrams directing the money to be paid Ford read:

"Cleveland, Ohio, July 28, 06. Hon. Frank A. Leach,

Superintendent U. S. Mint, San Francisco. Please pay to Tirey

L. Ford, or order, fifty thousand dollars and charge same to

my account. Patrick Calhoun, President United Railroads of San

Francisco."

[431] Calhoun's order placing the $100,000 to Ford's credit read as

follows:

"Cleveland, Ohio, August 21, 06. Hon. Frank A. Leach,

Superintendent United States Mint, San Francisco. Please pay

to General Tirey L. Ford, or order, one hundred thousand

dollars, and charge the same to my account. Patrick Calhoun,

President United Railroads, San Francisco."

[432] Calhoun's final receipt for the $200,000 was as follows:

"Received from Frank A. Leach, Superintendent U. S. Mint, two

hundred thousand dollars ($200,000) on c/d No. 5251, with

Asst. Treasurer U. S., New York.

PATRICK CALHOUN,

"President United Railroads."

[433] "I want to protect those (the contributors) whom I promised to

protect in this matter," said Spreckels. "Outside of that, the

matter is entirely an open matter; I have no concern in

it."--See Spreckels's testimony, Transcript of evidence in the

matter of The People vs. Patrick Calhoun, Page 3385.

[434] The statement in full of the expenditures of the Prosecution,

as shown in the transcript of the Calhoun trial, will be found

on page xxxiv of the Appendix.

[435] The charge of private prosecution was raised early. The

Chronicle of May 14, 1907, printed as part of Ford's statement

why he did not testify before the Grand Jury, the following:

"The private interests that are behind this attack upon the

officers of the United Railroads have free access to this

juryroom through their chosen counsel who has assumed to

exercise all the official authority of the District Attorney

of this city and who, by reason of the exercise of such

authority, has become the legal counsellor and guide of this

Grand Jury.

"The officers of the United Railroads are not unmindful of the

tremendous power for harm that lies in this unusual and

extraordinary situation.

"They, therefore, protest against the consideration by this

Grand Jury of any evidence whose legality and sufficiency

cannot be judicially determined from a full, complete and

correct transcript thereof.

"Second--The subpoena by which my attendance here was compelled

was not only insufficient in both form and substance, but was

served by a privately employed detective who is not a citizen

of California and who is employed and paid by private interests

notoriously hostile to the United Railroads.

"Third--There is here present a person not permitted by the

laws of this State to be present, namely, an attorney nominally

representing the office of the District Attorney, while, in

fact, representing private interests in no manner connected

officially with any of the governmental affairs of this city

and State.

"Fourth--I am the general counsel and legal adviser of the

United Railroads and its officers, and whatever knowledge I

possess of any of the affairs of the United Railroads or of its

officers, has come to me in professional confidence and, under

the law of this State, every attorney is compelled to keep

inviolate, and at every peril to himself, preserve the secrets

of his clients.

"Fifth--Under the statement of the representative of the

District Attorney's office in attendance before this Grand

Jury, I feel it my duty to stand with the officers of the

United Railroads upon my constitutional rights, and the

District Attorney knows that he cannot in these proceedings

compel me to testify, and he also knows that no unfavorable

inference is permitted to be drawn from our declination in this

regard."

[436] One of the most complete answers to the charges scattered

nation-wide by the Graft Defense, came from Dean John H.

Wigmore of the Northwestern School of Law at Chicago, author

of Wigmore on Evidence, (See footnote 283.)

[437] See transcript of testimony, The People vs. Patrick Calhoun,

No. 1436, page 3723.

[438] Mr. Spreckels finally testified on this point as follows:

"Mr. Heney. Q. At the time that Mr. Phelan agreed to

contribute the $10,000, Mr. Spreckels, what did you say, if

anything, about contributing yourself? A. That was in the

first meeting. I think, Mr. Heney, and I told him that I was

ready and willing to contribute a similar amount; that I

believed it would be possible to get others to join and

contribute.

"Q. At that time was anything said by any person about

prosecuting Mr. Calhoun? A. Absolutely no.

"Q. Or any person connected with the United Railroads Company?

A. The discussion was entirely confined to the administration,

the corrupt administration as we termed it.

"Q. At that time did you have any purpose or intention of

prosecuting Mr. Calhoun? A. I had not.

"Q. Did you have any reason to believe that Mr. Calhoun at that

time had committed any crime? A. I had no indication of such a

crime.

"Mr. Moore. Was that time fixed, Mr. Heney?

"Mr. Heney. Yes, it was fixed; the first conversation, and he

has fixed it as nearly as he could.

"The Court. Have you in mind the testimony on that point, Mr.

Moore? There was some reference to it in an earlier part of the

examination.

"Mr. Heney. Q. When you had the talk with Mr. Heney in April,

1906, did you say anything about prosecuting Mr. Calhoun, or

anybody connected with the United Railroads? A. I did not.

"Q. Did you at any time tell Mr. Heney, that you desired to

have him prosecute Mr. Patrick Calhoun? A. I did not, at any

time.

"Q. Did you tell him at any time that you desired to have him

prosecute any person connected with the United Railroads

Company? A. I did not."

[439] The Chronicle in its issue of March 19, 1907, the day after

the story of corruption of Supervisors was made public, refers to

the denials of United Railroads officials as follows:

"Weeks ago, when the first charges of a corruption fund was

published, Patrick Calhoun issued from his New York offices a

typewritten statement, equivalent to about three-fourths of a

Chronicle column, in which he announced:

"'I have just seen the San Francisco papers, in which vague

charges are made that the United Railroads of San Francisco

paid or caused to be paid $700,000 for a permit to use

electricity on the roads that it formerly operated with cable.

There is no foundation for this rumor. The United Railroads of

San Francisco never paid or authorized any one to pay on its

behalf a single dollar to the Mayor, Supervisors or any public

official of the city of San Francisco or the State of

California.'

"Late last night the following additional denial was issued

from the office of the United Railroads:

"'I am authorized to state in the most positive way that

neither Mr. Calhoun nor any officer of the United Railroads

ever paid or authorized anyone to pay one dollar to any

official.

'THORNWELL MULLALLY,

'Assistant to the President United Railroads.'"

[440] The following statement was published over the name of Otto T.

Hildebrecht, one of the two jurors who had voted to convict:

"As soon as we entered the jury room, I overheard a crowd of

the jurors in the rear of the hall shouting 'Acquit! Acquit!'

We then proceeded to name a foreman. This matter disposed of,

the members began balloting.

"In the first half hour three ballots were cast. On the first

vote it stood 8 to 4 for acquittal. On the second ballot

Maguire succumbed to the pressure. I called upon him for his

reasons for changing his vote and he replied: 'Oh, these

corrupt conditions have always prevailed in San Francisco. The

Supervisors in this case are no different from the other men,

who have filled those offices. It will always be like that.'

To combat this attitude on Maguire's part, I stated, 'Well, it

is time to stamp out the crimes in this, city. In order that

the evil may be corrected we must put a stop to it.' This

seemed to have no weight with Maguire.

"The next ballot showed that Anthes had gone over to the

others. From him I secured this information: 'Oh, why I always

vote with the majority.' I said, 'Why, how can an honest man

take that view of the matter?' I have taken an oath and at that

time announced that I would try this case solely on the

evidence.

"It is plainly pointed out in the testimony of Sanderson that

Calhoun was present when Ruef said, 'This thing will go through

on Monday. It is all settled.' This produced no impression upon

the others, although I argued that such testimony alone proved

Calhoun's guilty knowledge of the plan to put the deal through

when he remarked in answer to Sanderson's query, 'Then you

won't need me?' 'I don't think we do.'

"I then asked the other jurors to come into court, they

contending that Ruef had carried on the conversation with

Sanderson and that Calhoun was an innocent witness. We asked to

have this testimony revealed and the jurors filed into court.

Upon returning to the jury room we renewed our deliberations.

"The other ten jurors came at Binner and myself and sought to

induce me to stretch my imagination to the end that Calhoun had

paid the money to Ruef, but only as a fee. They acknowledged

right there that Calhoun had paid over the money but they

argued that he didn't know that the money was going to be used

as a bribe to the Supervisors,--only as a fee to Ruef. After

that I knew that these men had purposely taken the wrong view

of the whole matter. I had called them to account for the

remarks that the testimony throughout the case was all

purchased and that Heney had held the whip over the

Supervisors. Thereupon they backed down on that stand and made

their whole plea on the ground that Calhoun had given the

trolley money to Ruef as a fee.

"I disagreed on the ground that Heney, Spreckels and the other

members of the prosecution were not on trial as they insisted,

and that the other matters, such as the theft of reports and

suppression of testimony, had only been touched upon during the

trial to prove that Calhoun knew that the bribery deal had been

carried through.

"'Can't you give Calhoun the benefit of the doubt, that he paid

this money as a fee?' was the burden of the others' argument.

'I would be willing to extend him every chance,' I replied,

'but why has he not introduced these vouchers of the United

Railroads in court, then we might see what was paid to bribe

the juries in the Ford trials.' After this they dropped me like

a red-hot stove. I seemed to have struck home. It was a

terrifying ordeal to stand off these ten men for twelve hours,

but I held firmly to my course and voted throughout upon my

conscience. I should have been ashamed to have lifted my head

in the future had I fallen down and voted for an acquittal.

When the deputy, Mr. Coyle, called to convey the word to Judge

Lawlor as to the clearness of an agreement being reached, I met

him at the door that night. 'We shall never reach an

agreement,' I replied, 'unless these men come over to my side.

That I fear shall never come to pass.' The claim has been made

in the Globe that I asked for a secret ballot. That is an

untruth, as is the statement that I am a Socialist. Not that I

am opposed to Socialism, but I have never been inclined to

their views. Our political outlooks differ. When I told Coyle

that there was no chance of a verdict being reached, the other

jurors, one of those standing alongside of me, punched me in

the ribs in an effort to make me shut up, as they figured that

they ought to be able to convince me. I have received letters

from all over the State; friends and acquaintances, even utter

strangers, congratulating me upon my stand in the Calhoun case

and my vote for conviction."

[441] Calhoun, after the disagreement of the jury that tried him,

issued a statement to the press in which he bitterly denounced

those who were responsible for the prosecution, and hinted at

retaliation. He continued to insist that Heney was a corrupt

official: "There lies in the courtroom," said Calhoun, "forty

checks made by Mr. Rudolph Spreckels to Mr. Francis J. Heney

since his alleged appointment as Assistant District Attorney.

Those checks were deposited in the American National Bank to

his private account. They aggregate $23,800. The first of them

amounted to $4,900. They are the price of his infamy. He can

not escape the fact that he is a corrupt public official by

the contention that he has been engaged in a holy crusade. He

can not defend the acceptance of money from a private citizen

for the express purpose of enabling him to devote himself

exclusively to the so-called Graft Prosecution without

committing the crime of accepting a bribe. I here make the

formal and specific charge that Francis J. Heney stands side

by side with James L. Gallagher as a corrupt public official.

I charge him with having accepted bribes and I also charge

Rudolph Spreckels and James D. Phelan with having given him

the bribes; and if we can get a fair District Attorney in the

city of San Francisco I propose at the proper time and in the

proper way to submit formal charges against Heney for having

received bribes and Spreckels and Phelan for having paid

them."

Of Calhoun's threat of prosecution, The Call in its issue of

June 22, 1909, said:

"In that soiled and motley retinue of strikers and heelers,

jury fixers and gaspipe men that the head of the United

Railroads has gathered about him were many who made it a

business to proclaim that when the indictments came to the test

of fact in court the disposition of that $200,000 would be

explained as a perfectly innocent matter in the simplest

possible manner. How these promises have been fulfilled we

know. The mystery of that $200,000 remains as dark as ever. Not

even the stockholders of the company are invited into the

confidence of its president. It is not now the question, Where

did he get it? but What did he do with it?

"As long as that question remains unanswered by or for Calhoun

and as long as he refuses to undergo cross examination and the

ordinary legal tests of proof, just so long will the whole

American public believe him guilty of bribery. As for his

threat of some sort of vague legal proceedings against the

prosecutors, that will merely provoke a laugh, as men do laugh

at a cheap and obvious bluff."

[442] The free press, not only of California but of the entire

nation, protested against such a course. "San Francisco," said

the Pittsburgh Times-Gazette, "owes it to the nation to

continue her fight against the big grafters of that town. If

she lets up now the grafters the country over will take heart,

and the next time it becomes necessary to go after the tribe,

it will be more difficult even than it has been in San

Francisco to convict a briber."

CHAPTER XXVII.

THE SAN FRANCISCO ELECTION OF 1909.

Scarcely had the disagreeing jury in the Calhoun case been discharged

than the Graft Prosecution was again called upon to meet the graft

defense at the polls. Langdon's second term was to expire the following

January. His successor was to be elected in November.

Mr. Langdon refused positively to be a candidate to succeed himself. The

supporters of the prosecution turned to Heney as the most available

candidate to oppose the elements united against them.

Heney did not want to be a candidate. The grueling contest of the

Calhoun trial, coupled with the nerve-shattering effects of the wound in

his head, had brought him to the point of physical and nervous

breakdown. But it was demonstrated to him that he had the largest

personal following in San Francisco; that the public had confidence in

him; that he must make the fight.

And Heney, doubtful of his physical ability to continue to the end of

the primary and final campaigns, consented to become a candidate.

There followed the most astonishing campaign for municipal office ever

held in San Francisco, or probably in any other American city.

California was at the time groping her way from the clutch of the

Southern Pacific "machine." The California Legislature of 1909 had

adjourned after a session which had ended largely in disappointing

failure for the anti-machine element. The anti-machine element had been

in slight majority, but it had blunderingly permitted the machine

minority to organize both houses. As a result, the "machine" had been

able to defeat the passage of many anti-machine--now known as

progressive--measures. In other instances progressive measures were

before their passage,[443] in the face of the earnest but unavailable

protest of the well-intentioned but unorganized anti-machine majority,

loaded with hampering amendments.

Two of these measures bore directly upon the San Francisco situation.

The first measure provided for the Direct Primary. The second provided

for the elimination of the "party circle" from the election ballot.

This last named measure, known as "the Party Circle bill," passed the

Senate, but was defeated by one vote in the Assembly. The defeated

measure was intended to restore the Australian ballot to its original

simplicity and effectiveness.[444]