CHAPTER VII.

OLIVER GRAND JURY IMPANELED.

The hard fight of the morning of October 26th to prevent Ruef taking possession of the District Attorney's office had been carried on practically without the general public being aware of the proceedings. Langdon had been suspended early in the evening of the previous day. The temporary order restraining Ruef from interfering with the District Attorney had been signed at 5 o'clock in the morning. The general public found by the morning papers that Ruef had attempted to seize the office, but of the steps taken to stay his hand the papers had nothing. The question on every man's lip was: Will Judge Graham recognize Ruef or Langdon as District Attorney at the impaneling of the Grand Jury?

The court was to meet at 2 o'clock. Long before that hour arrived, the halls of Temple Israel, a Jewish synagogue in which several departments of the Superior Court met during the months following the great fire, were packed with citizens. The street in front of the building soon became jammed with a struggling mass of men demanding entrance. The crowd became so great that none could enter or leave the building.

Plain-clothes men were on all sides, and succeeded in clearing a space about the entrance. The work of clearing the building of all who could not show that they had business there, then began. In this work, deference was shown Ruef's adherents. Notorious saloon-keepers, ex-prize fighters and strong-arm men friendly to Ruef were permitted to remain. Opponents of the administration who protested against removal were unceremoniously thrown out.

Although little groups of partisans of the administration appeared in the crowd, the citizens assembled were in the main clearly in sympathy with the prosecution.[103] The arrival of Langdon, Heney and Spreckels was signal for outbursts of applause. Ruef apparently appreciated the feeling against him. He appeared guarded by two detectives of the regular police department,[104] and a body-guard of partisans. The crowd began to press about him. Several of his followers made motions as though to draw revolvers. Ruef hurried into the building. To add to the confusion, there was, planned or without planning, misunderstanding as to the room in which the hearing was to be held. The representatives of District Attorney Langdon's office finding themselves misinformed as to the meeting place, forced their way from hall to hall seeking reliable information. When the room was finally located, it was found to be packed with Ruef followers. The sheriff ordered the doors closed. The Court's attention was called to this. District Attorney Langdon insisted that the doors be opened and the crowd permitted to enter to the capacity of the room. He pointed out that some had been admitted and others kept out, and insisted there should be no discrimination. This course was taken. The crowd poured in until every available foot of standing room was occupied.[105]

Eighteen of the nineteen citizens required under the California law for Grand Jury service had already been drawn at former sessions of the court. As soon as order had been secured, the name of the nineteenth was taken from the jury box.

This detail over, Heney called the Court's attention to the provision of the California law, that no person whose name does not appear on the assessment roll of the county in which he serves is eligible for Grand Jury service, and that the courts have held further, that bias or prejudice of a Grand Juror against a person indicted is sufficient grounds for setting aside the indictment. Heney then stated that he wished to examine the nineteen men as to their qualifications as Grand Jurors.

Ruef, announcing himself as an officer of the court, arose to speak. Heney objected to Ruef appearing, if by officer of the court he meant District Attorney or Acting District Attorney. Ruef answered that he appeared only in his capacity as member of the bar. On this showing he was allowed to proceed.

Ruef contended that the procedure proposed by Heney was irregular; that if followed the validity of the Grand Jury would be imperiled. He stated that he did not want to see the Grand Jury made an illegal body.

Heney replied that he intended, as Assistant District Attorney, to present felony charges against Ruef, and desired to examine the prospective Grand Jurors as to their bias for or against Ruef. Furthermore, Heney insisted, the Court had authority to excuse a juror if he were not on the assessment roll. To accept as Grand Jurors men whose names were not on the assessment roll, or men biased or prejudiced against Ruef would, Heney insisted, make the proceedings a farce.[106]

In reply to Heney, Ruef defied him to produce any evidence "in open court before an untutored Grand Jury for an indictment." Ruef charged Heney further with employing abuse "to make the Grand Jury illegal so that nothing might come of any indictment."

At this point, the Attorney General of the State, U. S. Webb,[107] addressed the Court. At his suggestion the Grand Jurors were excused for the day. General Webb then stated that he knew of no law for the procedure which Mr. Heney suggested. He admitted, however, that such procedure would be desirable, and advised that no hasty action be taken in coming to a decision.

Heney in reply read from California decisions to show that The People have the authority to make examination of Grand Jurors, and continued:

"The only question remaining is as to when this examination shall be made. Suppose the foreman of the Grand Jury is biased or prejudiced. Does it require any argument that now is the time to make this examination instead of waiting until we have presented our evidence to the Grand Jury? Shall we first have to give those whom we accuse time to bribe witnesses and get them out of the country? Shall we let the defendant come in and quash the indictment, if there is any bias or prejudice, and then be enabled to protect himself against prosecution?

"After the miserable fiasco (the attempted removal of Langdon) which occurred last night," Heney went on, "what more important duty for this Court to perform than to say immediately that the law is more powerful than any man or any set of men in San Francisco?"

As Heney concluded, the packed courtroom burst into applause. The crowd outside heard, took it up and cheered wildly. As soon as order was restored, Henry Ach, one of the attorneys appearing for Ruef, suggested that Heney, the Attorney General and himself, get together to present the question of whether Langdon or Ruef were District Attorney to the Supreme Court. Ach stated that he feared if Langdon or Heney attended a session of the Grand Jury and Ruef were to be found to be District Attorney, then the acts of the Grand Jury might be invalidated.

Heney replied that in acting as prosecutor it had been his rule "to have no conferences, treaties or alliances with persons charged with crime, or with their attorneys." On this ground, Heney declined Mr. Ach's proposition.

Judge Graham made no rulings that day on any of the points raised, but ordered a continuance until the following Monday.

After adjournment of court, the appearance of Langdon and Heney at the entrance of the building brought forth cheers from the crowd that all through the proceedings had waited outside. A speech was demanded of Langdon.

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

Immediately behind Langdon came Ruef, closely guarded by police and detectives. He was pale and worn and clearly frightened. The crowd pressed about him. Threats came from his followers to shoot into the crowd if it pressed too closely. Ruef finally reached his automobile and was driven away.[108]

The topic of discussion of the two days that elapsed before Judge Graham decided the questions that had been raised by Heney's proposal to proceed with the examination of the Grand Jurors, was whether Graham would allow such examination. It was alleged that no less than four of the citizens drawn for Grand Jury service were not on the assessment roll. There were, too, charges that Ruef controlled several of them. Some of the papers printed the names of those whom it was alleged were either under obligations to Ruef or connected with his political organization.

A second crowd filled courtroom, building and street when Judge Graham's court was called to order the following Monday. Mounted policemen, plain-clothes men and detectives, directed by two captains of police, were, however, on hand to preserve order.[109] There were no demonstrations. Judge Graham announced from the bench that after due deliberation, he had concluded that the District Attorney had the right to interrogate the Grand Jurors as to their qualifications. He stated further that inasmuch as Langdon was the de facto District Attorney, Langdon would conduct the examination.

The prosecution had won the first skirmish in the years-long fight upon which San Francisco was entering for the enforcement of the law.

The next move came from Attorney Samuel M. Shortridge. Shortridge appeared with Ruef's attorney, Henry Ach, and Marshall B. Woodworth. Ruef had named Woodworth, it will be remembered, as Heney's successor in the District Attorney's office.

Mr. Shortridge read Acting Mayor Gallagher's order suspending Langdon and appointing Ruef, and also called the Court's attention to the fact that Ruef had filed his official bond as District Attorney. Shortridge stated that the matter was pending before Judge Seawell, and asked the Court, "in deference to Judge Seawell," to postpone proceedings until the District-Attorney controversy should be decided. Shortridge expressed himself as fearful that, if the examination of the Grand Jurors went on, Judge Seawell's decision might invalidate the Grand Jury proceedings.

W. T. Baggett, Assistant City Attorney,[110] followed Shortridge. Mr. Baggett read a letter from the Acting Mayor, setting forth the fact of Langdon's removal, and joined with Shortridge in pleading for delay. But the pleas of both gentlemen were denied. Judge Graham repeated his opinion given earlier in the day that Langdon should be recognized as the de facto District Attorney, and ordered the impaneling of the Grand Jury to continue.

Shortridge thereupon announced his desire to participate in the examination of the Grand Jurors. Heney objected to Shortridge appearing as a representative of the District Attorney's office. Shortridge replied that he respected Judge Seawell's order, and had no intention of violating it. He asked if he would be permitted to act in the capacity of amicus curiƦ[111] in examining jurors. This privilege was accorded him.

The examination of the Grand Jurors occupied more than a week. Several of the nineteen were excused, it being found that their names were not on the assessment roll.

The examination was concluded[112] on November 7th and the Grand Jurors sworn. B. P. Oliver was appointed foreman. From him the body received its name of Oliver Grand Jury. The Grand Jury organized by electing C. G. Burnett secretary. But one important question remained to be decided, namely--Was Ruef or Langdon to represent The People at the investigation into graft charges which the Grand Jury was ready to begin?

FOOTNOTES:

[103] The San Francisco Chronicle in its issue of October 27 thus described the crowd: "Every man the police put out of the building was cheered by the crowd and every time policemen laid hands on anyone they were hissed. However, it was evident that the citizens who gathered outside the Temple Israel yesterday afternoon did not come prepared to fight with the police force. In the crowd standing outside almost every man prominent in the business and professional life of the city could be seen. Manufacturers, merchants, lawyers, doctors, men engaged in all the various lines of wholesale and retail business, and all the professions, included among the latter being many Protestant ministers, Catholic priests and Jewish rabbis. Here and there in the great concourse of people were scattered little groups of men of the type that may be seen hanging around the tenderloin."

[104] Detectives Steve Bunner and Tim Riordan. These men accompanied Ruef for nearly a month. Late in November, after Ruef had been indicted, they were sent back to active duty.

[105] While the crowd was pressing into the room, a deputy sheriff undertook to search Heney for concealed weapons. Heney complained of the officer's conduct, protested vigorously. "That is the man standing there," cried Heney, "he did so at the request of Abe Ruef."

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

It developed that Heney was not armed, and the incident went no further. But it indicated the sharpness of the division between the two factions.

[106] The Chronicle of October 27, 1906, contains the following account of Heney's reply to Ruef: "'I now announce to the court,' said Heney fervently, 'that I intend as Assistant District Attorney, to present charges of felony and misdemeanor against Abraham Ruef, and I desire to examine the members of this panel to determine if any member entertains bias or prejudice for or against Abraham Ruef in the matter of the charges which are to be presented by the District Attorney's office. I understand that there is no question as to Abraham Ruef's right to have the indictment set aside if any member of the Grand Jury is biased or prejudiced against him. It would be a farce,' Heney went on, his voice swelling, 'it would be adding to the comedy of errors enacted last night (the attempted removal of Langdon from office), if we have a Grand Jury which is biased or prejudiced. It has become public through the newspapers--to some extent, at least--that Abraham Ruef is to be investigated. The People have the same right as the defendant to examine the members of the panel as to their qualifications. I know that a number of the members do not possess the qualifications provided by the statute, as they are not on the assessment roll, and I desire to question them on that point. The Court has the right to excuse a juror if he is not on the assessment roll. The Supreme Court has decided that a man has the right to be investigated by a Grand Jury of nineteen men who are qualified according to the statute and none others. It is not necessary to take for grand jurors the nineteen whose names are first drawn from the box. We should examine them, so that a member who has a bias or prejudice as to a particular person may be instructed that he shall not participate in the investigation of that person.'"

[107] Under the California law, the Attorney-General may at his discretion, take the prosecution of a criminal case out of the hands of a District Attorney. It was within General Webb's province to have taken charge of the San Francisco graft trials. In a statement given wide publicity at the time, General Webb stated that he had no intention of taking charge of the graft trials unless Ruef succeeded in seizing the District Attorney's office. Long after, however, Heney, in an affidavit filed in the case of The People vs. Patrick Calhoun, Thornwell Mullally, Tirey L. Ford, William M. Abbott, Abraham Ruef and Eugene E. Schmitz, No. 823, set forth a statement made to him by Ruef when Ruef was pleading for immunity, in which Webb's presence at the impaneling of the Grand Jury was touched upon as follows:

"Ruef said in reply in substance, 'You are prejudiced against me, Heney, ever since we had that quarrel during last election. You know that the public-service corporations are responsible for the conditions which exist in San Francisco and that I can help you send some of the officials of those corporations to the penitentiary, and I can also help you to clean up this city and make it impossible for corruption to get a foothold here again for a long time. You are afraid to trust me, but you are making a mistake. The moment it becomes known that I have gone over to the prosecution the most powerful influences in this State will all be arrayed against us, and particularly against me. The moment you attack Pat Calhoun you in fact attack Herrin. You don't know the relation between these parties and the corporation as well as I do. I am very fond of Tirey Ford, but I don't care a rap about Pat Calhoun, and would just as soon testify against him as not. But the moment it becomes known that I am ready to do so my life will no longer be safe. I will have to stick to the prosecution from the moment I start in with it. You don't know what desperate means these people are capable of resorting to. My life will not be safe. If they keep me in the county jail with O'Neil as Sheriff they will kill me to a certainty. You don't know how many influential people are involved in this thing. You and Burns think you know, but there are a lot of people whom you don't know anything about who are mixed up in it. I tell you that the combined influence of all these people will make it next to impossible to secure convictions, and will make it very dangerous for all of us. It will not do to lessen the weight of my testimony any by having me plead guilty in that extortion case. Besides that, the Court would not allow me bail after I had pleaded guilty, and the Supreme Court may knock out the elisor, and then I would be absolutely in the hands of the other people, and they would surely kill me. Sheriff O'Neil is loyal to me now, but the moment he knew I was going to testify against Schmitz he would be very bitter against me, and would do whatever those people wanted him to do. Moreover, Herrin will get Attorney-General Webb to come down and take these cases out of the hands of Langdon and yourself, and he will declare the immunity contract off upon the ground that the District Attorney has no power to make one and will prosecute me on some of the bribery cases now pending against me, and if they convict me Herrin will see to it that I am not pardoned by the Governor. He now controls the Governor and the chances are he will continue to name the Governor and control him for the next twenty years. Webb was a deputy in Ford's office when Ford was Attorney-General, and it was Ford who got him to come down here and 'butt in' at the time you were impaneling the Grand Jury. I know you fellows thought it was I who got him to come down here, but as a matter of fact I did not know any more about it than you did until he appeared there, and I am sure it was Ford who did it."

[108] While Ruef was struggling through the crowd to reach his automobile Dr. Shadwick O. Beasley, Instructor in Anatomy at the Cooper Medical College, was assaulted by some unidentified person. Dr. Beasley turned, shook his fist at Ruef and hissed him. The doctor was immediately placed under arrest. Dr. Beasley, on his part, swore out a warrant charging an unknown deputy sheriff with battery. Beasley was then made subject of petty persecution. He was, for example, held up on the street by a deputy sheriff and charged with carrying a concealed weapon. He was searched by two men, but nothing more deadly than a case of surgical instruments was found upon him. Dr. Beasley complained bitterly of the rough treatment from the officers.

The San Francisco Chronicle, in its issue of October 27, 1906, thus describes the scene which followed Ruef's appearance before the crowd:

"With fists and clubs Chief of Police Dinan and his squad from the Central Police Station fought off the crowd of angry citizens assembled about the Temple Israel who sought to lay violent hands on Abe Ruef when the curly-headed usurper of the functions of the municipal government was leaving the scene of the Grand Jury meeting yesterday afternoon. And in the wake of the police were the Ruef heelers from the tenderloin with their hands on their pistols, threatening to shoot down the citizens of the city of San Francisco who should dare to approach too near the sacred person of their tenderloin idol.

"It was one of the most remarkable scenes ever witnessed in any city of this country. Stung with the outrageous assumption of the powers of the public prosecutor when he was about to be placed on trial himself for crime, the citizens of the city, among whom are names that stand highest in business and professional circles, sought to make him realize the impudence of his conduct. That he escaped a swift punishment for his arrogant seizure of the office of the District Attorney is solely due to the presence and strenuous efforts of the police."

[109] In sending his officers to handle this crowd, Chief of Police Dinan gave the following instructions:

"The captains, sergeants and officers so detailed are instructed that they are sent to the place designated for the purpose of doing strict police duty. They will see that the streets and sidewalks are not obstructed, and that no violations of the law are permitted."

[110] Under the San Francisco municipal charter, the District Attorney has charge of criminal cases, and the City Attorney of civil cases in which the city is concerned. The City Attorney also acts as adviser to the Mayor and Board of Supervisors. The two are independent offices.

[111] Shortridge stated that as amicus curiae, it was his duty to see that the proceedings were without flaw. Heney refused to take him seriously, however, referred to him facetiously as the "curious friend of the Court." and suggested that the Court unassisted might be able to determine what was competent evidence.

[112] The following nineteen citizens composed the Grand Jury that conducted the investigation of San Francisco "graft" charges:

E. J. Gallagher, photographic supply dealer; Frank A. Dwyer, real estate; Herman H. Young, baker and restaurant proprietor; Mendle Rothenburg, liquor dealer; James E. Gordon, merchant; Alfred Greenebaum, merchant; Wallace Wise, haberdasher; Jeremiah Deasy, insurance agent; Rudolph Mohr, brewer; C. G. Burnett, capitalist; Charles Sonntag, merchant; Morris A. Levingston, liquor dealer; B. P. Oliver, real estate; W. P. Redington, druggist; Christian P. Rode, drayman; Ansel C. Robinson, merchant; Dewey Coffin, real estate; F. G. Sanborn, law book publisher; Maurice Block, merchant.