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 hadbeen 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 shouldbe 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 sentto 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 havingoffices 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 upto 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 withRuef’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 sixfor 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.
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’ tabletalking 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 “Muttcartoons“ 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 thegraft 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 clamoringfor 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, andthat 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 adoptedcondemning 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 DetectiveBurns. 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 adoptedcondemning 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 involvedin 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 timebecome 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 whichhe 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.
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 wasin 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 thearmy 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 tobelieve 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 werenecessary 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 ablestlawyers, 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 SupervisorJohn 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. Thismeant 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.
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 asession 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]
Under the machine’s tinkering of the State’s election laws, the Australian ballot had become a device for encouraging partisan voting. The “party circle” was placed at the head of the column of party candidates. A cross placed in the circle registered a vote for every candidate nominated by the party designated by the circle. The question of “distinguishing marks” invalidating entire ballots was ruled upon so closely by the State courts, that many voters voted by means of the one cross in the party circle to avoid the risk of having their entire ballot denied counting because of technical defects that might creep in if a divided ticket were voted. Had the “Party Circle bill” become a law it would have eliminated the “party circle” from the ballot, leaving the voter to select individual candidates of his choice. The one Assembly vote that defeated this measure after it had passed the Senate, went far toward bringing the San Francisco Graft Prosecution to an end.
The Direct Primary measure was not defeated, nor did the machine element succeed in amending it into complete ineffectiveness. The anti-machine Republicans and Democrats, by joining in non-partisan caucus on this measure, succeeded in forcing the passage of the Direct Primary bill, but they were not able to keep it free of defects. Harassed by the machine at every turn, the anti-machine Senators and Assemblymen were compelled to accept many undesirable provisions.[445]
One of these provisions bore directly upon the San Francisco election of 1909, and contributed to a large extent to the outcome.
This clause required a primary candidate to make affidavit giving “the name of his party and that of the office for which he desires to be a candidate; that he affiliated with said party at the last preceding general election, and either that he did not vote thereat or voted for a majority of the candidates of said party at said next preceding general election, and intends to so vote at the ensuing election.”
At the time this section was under consideration, anti-machine legislators and the unhampered press pointed out that under it, District Attorney Langdon could not, in all probability, have been nominated nor re-elected in 1907; that Mayor Taylor’s election of that year would have been impracticable, if not impossible; that Judge Dunne would have been hampered to the point of defeat in 1908; that under it, both in 1907 and 1908, the so-called “higher-up” element in the field of corruption would have been given an advantage which the better citizenship of the community would have had difficulty in overcoming.[446]
But the machine element denounced these not unreasonable objectors as “enemies of the Direct Primary bill,” and under cover of the denunciation, and the fight for practical expression of popular choice for United States Senators, the objectionable clause was permitted to remain in the bill.
No sooner had the Legislature adjourned than judicial interpretation of the partisan clause of the Direct Primary Act became necessary. The San Francisco primary election was at hand, and the partisan provisions of the new law proved the first snag which the various candidates encountered.
Although the members of the Legislature, machine as well as anti-machine, voted for the bill, believing that the partisan clause restricted primary nominations to members of the party of the candidates’ affiliation, the San Francisco Election Commissioners held there was nothing in the law to prevent the name of a Republican appearing on the Democratic ticket, or of a Democrat on the Republican ticket, provided the candidate made affidavit of the party of his affiliation.
Under this ruling it appeared that, in spite of the objectionable partisan provision of the Direct Primary law, the San Francisco election could be held on the non-partisan basis which had resulted in the election of Taylor and Langdon two years before. The one issue before the San Francisco electors was continuance of the Graft Prosecution. The supporters of the prosecution, Republicans as well as Democrats, desired to vote for Heney. McCarthy was the avowed Labor Union party candidate for Mayor. The Union Labor party was considering the nomination for District Attorney of Charles M. Fickert. The prospects were good that Heney would receive the Republican and Democratic nominations, as Langdon had two years before. He was supported by the better element of both parties, and opposed by the anti-prosecution element of both. This opposition found expression in the Republican party in a committee of twenty-five, at the head of which was I. W. Hellman, Jr., of the Union Trust Company.[447]The better element of the party planned the nomination of Heney, as did the better element of Democrats.
On a non-partisan basis, such as had prevailed in 1907, the Union Labor party would have nominated McCarthy for Mayor, and Fickert for District Attorney, while the anti-machine, pro-prosecution Democrats and Republicans would have nominated a strong candidate for Mayor, and Heney for District Attorney.
Conditions were thus shaping themselves admirably for continuance of the non-partisan administration of municipal affairs, which had at least blocked corruption, even though it had not beaten down the barriers oftechnicality, which stood between the corruptors of the municipal government and law-provided penalties.
But this developing non-partisan arrangement was suddenly overturned in an opinion rendered by the Supreme Court, reversing the ruling of the Election Commissioners.
The court held that the partisan provisions of the Direct Primary law prohibited the name of a primary candidate appearing upon any primary ticket except that of the party of the candidate’s affiliations.
Under this ruling, Fickert’s name could not go on the Union Labor party primary ticket, for Fickert had affiliated with the Republican party. The Hellman committee of twenty-five (Republican) immediately took up the Union Labor party candidate for District Attorney, whose name could not go on the Union Labor party primary ticket, Mr. Fickert being apparently quite as satisfactory to Mr. Hellman and his associates as he was to Mr. McCarthy.
Heney, under the Supreme Court’s ruling, found himself in a more difficult position. With other California Progressives, Heney had in 1908 supported Taft for the Presidency. His political affiliations were therefore, under the provisions of the Direct Primary law, Republican. His name could be placed on the Republican primary ticket, but not on the Democratic. But it soon became evident that if his name went on the Republican ticket he would be defeated at the primaries.
The registration of voters under their party designation to enable them to vote at the partisan primaries showed an astonishing condition. The machine, anti-prosecution element was discovered to be massing its strength in the Republican party. Two years before, Daniel A. Ryan, the Republican candidate for Mayor, had received only 9255 votes in San Francisco, while Taylor, the Democratic candidate, had received 28,766, and McCarthy, Union Labor, 17,583. But for the 1909 primaries, no less than 47,945 registered as Republicans, a gain of 38,609 over Ryan’s vote,[448]while the Democratic registration was 17,632 only, 11,134 less than Taylor’s vote, and the Union Labor registration, 10,546, or 7037 less than McCarthy’s vote in 1907. Heney’s name could not go on the Democratic ballot. If he permitted it to go on the Republican ballot, the tremendous Republican registration indicated that the anti-machine Republicans would be outvoted by “machine” members of all parties who had registered as Republicans.
By another provision of the election laws, Heney, should he be defeated at the primaries, could not become an independent candidate; defeat at the primaries barred him from running at the final election.
Heney was effectively shut out from participating as a primary candidate. And this, in face of the fact that the anti-machine Republicans and the anti-machine Democrats were striving to make him their candidate.
Had the 1909 primary law prevailed in 1907, Langdon’s re-election could have been, and almost to a certainty would have been blocked, and the Graft Prosecution brought to an end two years before it was.
At the 1909 Primary election, Heney’s name, although he was the choice of the anti-machine element of all parties, did not appear on any of the primary ballots.[449]Nevertheless, 4594 Republicans wrote Heney’s name on their primary ballots. But this was not sufficient to give him the nomination. Fickert, whose name appeared on the Republican ballot, as a regular candidate, received 12,480 votes, which gave him the Republican nomination.
On neither the Democratic nor Union Labor primary tickets did the name of any candidate for District Attorney appear. The McCarthy element urged that Fickert’s name be written in by Union Labor party voters. They carried their point, Fickert being nominated by the Union Labor party by 3308 votes. But even here there was registered protest at what was going on. Union Labor party voters to the number of 617 wrote Heney’s name on their ballots.
In the same way, a determined effort was made to give Fickert the Democratic nomination also. He received 2298 votes. But the pro-prosecution Democrats rallied to Heney’s support, and nominated him by a vote of 2386. Thus out of a total of 28,967 who voted for nomination of District Attorney, no less than 7597, or more than 25 per cent., wrote Heney’s name on theirballots, in protest against the partisan conditions which made his regular nomination impractical.
The law was new; the election, the first held in the State under the Direct Primary. It was difficult to make the electors understand they could vote to nominate Heney by writing his name on the ballot. Of the 38,385 who voted at the primaries only 28,967 voted for District Attorney. Unquestionably, a large percentage of those who did not vote at all, would have written Heney’s name on the ballot had they known that such a course was permissible. But they did not know, and more than 25 per cent. of those voting did not vote for District Attorney. As the Rev. Charles N. Lathrop put it: “They have Heney sewed up in a bag, and the bag is the partisan features of the Direct Primary.”[450]
Out of this confusing primary election, Fickert came with two party nominations, the Union Labor and the Republican, while Heney had one nomination, the Democratic. This meant that Fickert’s name would be printed twice on the final ballot under partisan designation, while Heney’s would be printed but once. Thus, for every chance Heney had for a “party circle” vote Fickert had two.
The prosecution forces had supported Byron Mauzyfor Republican nomination for Mayor, but Mr. Mauzy[451]was defeated by William Crocker, who received the Republican nomination. The Democrats nominated Thomas B. W. Leland for the mayoralty office, while the Union Labor party named P. H. McCarthy. The mayoralty-district attorney tickets were, therefore: Republican, Crocker and Fickert; Union Labor, McCarthy and Fickert; Democratic, Leland and Heney. But the issue before San Francisco, continuance of the Graft Prosecution, had no partisan significance at all. It was supported and it was opposed by members of both parties. The whole fight was over the election of Heney. But never had candidate for office opposition which had more at stake.[452]
Men with apparently unlimited means at their disposal, realized that Heney’s election would in all probability mean for them a term in the State prison. They were fighting for their liberty. The commercial interests were warned that, in the words of I. W. Hellman, Sr., the banker, the Graft Prosecution was hurting business.[453]The anti-Graft Prosecution press insisted day after day that bribery of public officials, while bad, is the most common of crimes and the most difficult to prove; that San Francisco had tried to convict, had failed and might as well give up. So-called “improvement clubs” went so far as to adopt resolutions not only protesting against further prosecution, but demanding that the Supervisors withdraw support given the District Attorney’soffice in its efforts to land bribe-givers behind the bars.[454]And finally, the large business interests opposed to the prosecution, threw strength to McCarthy; not that they liked McCarthy—they united against him two years later—but because the election of McCarthy would go far toward the defeat of Heney. Members of the labor unions were, to a large extent, supporters of the prosecution. Their votes had made Langdon’s election surein 1907. During the 1909 campaign, and down to the very day of election, the sentiment among laboring men was to vote for McCarthy and Heney. But Heney’s name did not appear on the Union Labor ticket.
Labor’s support of Heney was vigorously opposed. Appeal was made to workingmen to stay by their class; to vote for the labor candidates, McCarthy and Fickert. On the Monday night before the election, the writer, with Professor George H. Boke of the University of California Law School, joined a group of working men who were discussing the merits of the several candidates.Apparently all but one of them were for McCarthy and Heney. The exception was for Leland and Heney. He was defending himself, when the writer joined the group, against the charge that in voting for Leland he was “voting outside his class.”
This Leland advocate was a most noticeable young man. He declared himself to be a member of the electricians’ union. Well under thirty, clear-eyed and forceful, he was prepared to stand his ground. When his immediate opponent became personal, the electrical worker, without raising his voice, without excitement, or boast, or display, remarked quietly: “Do not resort topersonalities, for if it comes to personalities, what chance have you against me?”
There were no more personalities.
Incidentally his argument was fast bringing out the fact that every worker in the crowd was going to vote for Heney. The effect of it was important. Suddenly from somewhere there appeared a new man to do his part in molding public opinion.
The new-comer went through that crowd with the assurance of a practiced football player through an aggregation of amateurs. In less than five minutes he had addressed every man of the group. But he had none of the marks of a worker, and nobody thought to ask for his “card.” His was the pasty face and the pudgy neck and the soft, unclean hand of the cadet. His argument was curious and even ridiculous, but it was most effective. It at least scattered the crowd.