Opinion
On Rehearing, Dec. 1, 1930.
Application by Warren K. Billings, for the written recommendation of a majority of the members of the Supreme Court that his petition for a pardon addressed to His Excellency, the Governor of California, be granted.
Application denied.
LANGDON, J., dissenting.
Before the Justices of the Supreme Court.
[210 Cal. 670] To His Excellency C. C. Young, Governor of California:
Pursuant to the requirement of section 1 of article 7 of the State Constitution and of section 1418 of the Penal Code, Warren K. Billings has presented his application for the written recommendation of a majority of the members of the Supreme Court of California that his petition for pardon heretofore addressed to Your Excellency as Governor of California be granted. Accompanying his application is the record upon which he relies as the requisite therefor, from which it appears that, prior to the applicant’s conviction of the particular felony by virtue of which he is now in confinement under a life sentence in the state prison, and for which he is seeking said pardon, he had been convicted of another felony. In addition to the official record showing these two convictions, the applicant also presents for our consideration a considerable amount of material, consisting of briefs, exhibits, letters, affidavits, etc., in support of his aforesaid application, all of which we have duly considered, and to some of which we shall hereinafter specifically refer. The judicial record of the applicant’s first conviction discloses that on September 13, 1913, Warren K. Billings was arrested in the city of Sacramento and charged with the unlawful possession and transportation of a considerable quantity of [210 Cal. 671] dynamite, found in a suitcase carried by him from Oakland to Sacramento and in his possession at the time of his arrest. He was proceeded against upon this charge and was brought to trial thereon before the superior court in and for the county of Sacramento on November 19, 1913, and was thereafter and on December 4, 1913, convicted upon said charge and sentenced to imprisonment for a term of two years in the state prison at Folsom. During the course of said trial it was developed in the evidence that Warren K. Billings was a member and the associate of a group of persons, men and women, who believed in and advocated the adoption of, and not only employed themselves, but persistently endeavored to both teach and lead others, chiefly among the laboring classes, to adopt violent means, such as the use of dynamite, in the destruction of property during labor disputes. The evidence further discloses that such labor disputes were at the time impending between the Pacific Gas&Electric Company and its employees and their sympathizers, of whom the defendant was one. The evidence further disclosed, inferentially at least, that the unlawful purpose which the defendant and his associates had at the time of said arrest was that of dynamiting the transformers and other appliances of the Pacific Gas&Electric Company in that region, a number of similar attempts having recently been successful. No appeal was taken or perfected by the defendant from the judgment and sentence, and he served his allotted term in the state prison. Upon his release he returned to his home in San Francisco, where he continued to reside up to the time of his arrest upon the charge from the conviction of which, and judgment and sentence in which he is now seeking pardon.
On the 22d day of July, 1916, at about 2 o’clock in the afternoon occurred the greatest tragedy conceived and carried into effect by criminal design in the history of the state of California. It is known as the ‘Preparedness Day Disaster.’ in which ten innocent persons lost their lives, and in the course of which scores of equally innocent persons, while there engaged in or observing a public patriotic demonstration, were cruely and in many instances permanently injured and disfigured. It was caused by the explosion of a dynamite bomb upon the public streets of said city, then thronged with people, at or near the corner of Steuart and Market streets therein, and while there was in [210 Cal. 672] course of progress at and near the place of the explosion the so-called ‘Preparedness Parade.’ Four days thereafter Warren K. Billings, with certain other persons, was arrested for the commission of the crime, and thereafter and on or about August 1, 1916, was indicted by the grand jury of the city and county of San Francisco upon eight charges of murder; and on the 11th day of September, 1916, was brought to trial upon said charges before Hon. Frank H. Dunne, judge of the superior court of that city and county, and a jury then regularly drawn and impaneled. On September 23, 1916, the cause, having been tried, was submitted to the jury, which returned a verdict of murder in the first degree, with the recommendation of imprisonment for life. A motion for a new trial was made and denied. judgment and sentence followed; whereupon notice of appeal to the appellate court was given, and such appeal was thereafter heard in said court, which upon September 6, 1917, rendered its decision affirming said judgment. People v. Billings, 34 Cal.App. 549, 168 P. 396. A petition for rehearing was presented and denied in that court, with a supplementary opinion. A petition for a hearing in the Supreme Court was in due course presented and denied. The defendant was thereupon confined in the state prison at Folsom, where he has since remained in the course of serving his sentence of life imprisonment in that institution.
This is the defendant’s first application for pardon, after serving upon his sentence in said institution for a period of about thirteen years.
The complete record of the defendant’s trial and conviction and of the proceedings upon his appeal is before us. It affirmatively appears from said record that the defendant was accorded a fair and impartial trial before the court and jury in said court. Upon the argument in the course of the trial the defendant’s counsel expressly stated in the presence of both judge and jury that the defendant had been accorded a fair and impartial trial. Upon said trial the defendant was represented during all its stages, as well as upon appeal, by astute and able counsel, particularly learned and experienced in all the arts of criminal procedure; and in this connection it is to be noted that, while respective counsel in the course of defendant’s trial indulged in the quite customary passages at arms and animadversions [210 Cal. 673] upon each other and upon the testimony of the various witnesses, there nowhere appears, either upon said trial or upon appeal, to have been presented the specific charge against the public officials, through whose efforts this defendant had been arrested and brought to trial, that such arrest and trial were the result of a ‘frame-up,’ or, in other words, of a conspiracy, either among said officials, or between them and other persons, to place a charge against or secure the conviction of an innocent man. Upon the entire record before us we acquit the then officials of San Francisco, who were charged with the duty of discovering and bringing to trial and conviction the authors of this dastardly crime, of the charge that in so doing they were actuated by improper motives, or made use of wrongful or improper methods in procuring the arrest and conviction of the defendant for his part, if any, in the commission of this inhuman and atrocious crime. Neither upon motion for new trial nor upon appeal was any such charge seriously presented nor sought to be shown by any semblance of proof. We shall have occasion later to recur to this subject.
Before proceeding to a consideration of the evidence educed upon the trial, as shown by the record thereof, or to a consideration of the material which the defendant and his supporters have later collected and presented in an effort to overthrow its conclusions, we deem it proper to state that we are entitled to consider the fact that the two crimes of which the defendant stands convicted are cognate crimes, each having its springs of action in opposition to those organized forms and forces whereby the vast majority of the people of our state and nation give expression to their ideals and methods of industrial production and of social order and progress. In each of these two crimes it was the overmastering will and purpose of its perpetrator to make manifest this opposition on the part of himself, or of a group of which he was a member, in identical forms of criminal violence, aimed in the one case at the destruction of property, and in the other at the destruction of life. This being so, we are entitled to consider not only the direct evidence in the latter case, but also those inferences which are dedudible from the identity between the two crimes of which the defendant stands convicted. We are permitted to draw such inferences under the express [210 Cal. 674] terms of section 1960 of the Code of Civil Procedure, which proceeds to state that ‘an inference must be founded: 1. On a fact legally proved; and, 2. On such a deduction from that fact as is warranted by a consideration of the usual propensities or passions of men, the particular propensities or passions of the person whose act is in question, the course of business, or the course of nature.’ We are thus entitled to consider the particular pervision, prejudices. propensities, and passions which dominated the defendant in the commission of the first crime, and to drawn therefrom such inferences as we may reasonably do, as to whether, accentuated and intensified by a term of imprisonment, the propensities and passions of the defendant, thus proven to exist, continued to operate so as to carry him forward to the commission, with identical purposes, and by the use of identical means, of a vastly more disastrous, despicable, and deadly crime.
Passing thus to a consideration of the record of the defendant’s trial and conviction, we find that upon his appeal from the judgment of conviction the defendant made the contention that the evidence was insufficient to justify his conviction. The appellate tribunal dealt specifically with that contention in its main opinion, and again upon petition for rehearing, going over the evidence in detail and evincing a most careful consideration of the entire case, and, having done so, decided that the evidence was amply sufficient to uphold the judgment. With this conclusion the Supreme Court, as then constituted, agreed, by its unanimous decision denying the defendant’s petition for a hearing before that court. With that decision rendered both upon hearing and application for rehearing in the appellate tribunal, the present members of the Supreme Court, after a most careful and full examination of the record, also fully agree. In so doing we have given full consideration to the evidence before the trial court tending to prove the precise manner in which the explosion had been occasioned. We have done this for the purpose of satisfying our minds as to whether the dynamic elements and forces which produced such explosion were co-ordinated, contained, and concealed in a suitcase which a few moments prior to such explosion had been placed upon the sidewalk at or near the corner of Steuart and Market streets, and that the content of said suitcase had been so co-ordinated with the aid of a timing device as to [210 Cal. 675] explode at a particular moment not long after it had been deposited in place. There is no tangible evidence in the record before us that the explosion was arranged for or occasioned in any other way. The suitcase which thus exploded at 6 minutes after 2 o’clock upon that fatal day had obviously been carried to and placed at the precise spot which it occupied at the time of such explosion by some person who was familiar with its contents and the probable moment of its explosion. It became an important element in the case, therefore, to show, if possible, that the defendant, Warren K. Billings, had been seen carrying a suitcase of the general form and dimensions of the one which had been destroyed in the explosion, at a time and place shortly before and not far from the scene of the explosion. We have carefully examined the record in this particular regard, and find that the evidence, entirely aside from the testimony of John MacDonald, sufficiently shows that the defendant was so seen. The witness Herbert A. Wade, principal of a school in Hawaii, and a teacher of twenty-two years’ experience, was called as a witness for the prosecution, and testified positively and circumstantially that he had seen the defendant at 721 Market street in San Francisco at the hour of about 1 o’clock on the day of the explosion, and that he was carrying a suitcase of particularized dimensions and appearance which corresponded in a general way to the suitcase which other witnesses described as having been within a comparatively short while thereafter deposited at the place where the explosion occurred. The testimony of this witness was not shaken upon cross-examination and has not since been seriously impaired. The witnesses Louis Rominger, Peter Vidovich, and Estelle G. Smith also testified to having seen the defendant, Warren K. Billings, with a suitcase in his possession at the same place and practically at or about the same time which the former witness particularly described and handled, and which was very heavy, weighing, according to his estimate, about thirty pounds. These three witnesses were not shaken upon their cross-examination nor during the trial, but have been since bitterly assailed upon grounds which, it is contended, render them, and each of them, unworthy of belief. As to the witness Louis Rominger, there was presented upon the defendant’s motion for a new trial the affidavit of one William A. Kerch, who deposed that [210 Cal. 676] he had also seen the man whom Rominger had seen at said place carrying a suitcase, and that it was into the defendant, Billings, and, furthermore, that the witness Louis Rominger had on various occasions stated to him that the man he had so seen was not Billings. The trial court had this affidavit before it at the time it passed upon the defendant’s motion for a new trial, and must be presumed to have weighed and determined where the truth lay between these two witnesses at the time it denied the defendant’s motion for a new trial. It is also contended and sought to be shown by certain ex parte statements that each of these three witnesses had been guilty of certain moral and legal delinquencies which discredited their aforesaid testimony; as, for example, that Rominger had been living in adultery with the mother of Estelle G. Smith, that Estelle G. Smith had been mixed up in a sordid murder case in southern California, and that Peter Vidovich had some years before been convicted of petit larceny in Alaska and sentenced to pay a fine of $100. The impeachments of these three witnesses, if they be such, were not presented at the trial of Billings nor upon his motion for a new trial, but are of later discovery and presentation. As to these discrediting circumstances affecting each of these witnesses, it may be said that they do not supply any legal ground for disregarding altogether their and each of their circumstantial story given under oath upon the witness stand.
The state in criminal trials does not manufacture its witnesses, but must take and rely upon such persons for witnesses as the circumstances and environment of the particular crime afford. The testimony of a witness who may have moral delinquencies, or who may even have been convicted of some offense foreign to that under inquiry, is to be weighed by the usual standards for determining the credibility of witnesses, and should not be altogether disregarded in the particular case unless it be shown that the witness had some interest or some motive which might furnish a temptation to commit perjury. As to the testimony of Nellie Edeau and her daughter, we think it was sufficiently discredited by the affidavit of William Smith of the Oakland police department, as well as by her own later retraction, to be wholly disregarded upon this inquiry. We are, however, fairly satisfied that the evidence, taken as a whole, presented at the defendant’s trial, sufficiently shows [210 Cal. 677] that the defendant, Billings, was seen upon Market street in the city of San Francisco within a few blocks of the scene of the explosion and within a short time before it occurred carrying a suitcase of the general dimension and color of that which contained the time bomb which exploded at said time and place. This conclusion destroys all of that portion of the attempted alibi of the defendant which relates to his conduct and whereabouts during the hour which preceded the explosion. His testimony in that regard, both as to the fact that he had no suitcase and that he was not at or near the place where these witnesses placed him during that time, we are sufficiently satisfied is false. As to that portion of his alibi, sworn to only by himself, which relates to his whereabouts at the precise time of the explosion and during the half hour which followed its occurrence it has the not infrequent infirmity of being unsupported by the testimony of any other witness, and it would seem to be almost incredible that, if Billings was upon the public streets of San Francisco during that fatal hour, and at otherwheres than the scene of the explosion, he would have been unable to show that fact by the supporting testimony of persons who saw him at the times and places where he alone gave testimony to have been. On the other hand, there is certain evidence aside from that of John MacDonald, that Warren K. Billings was seen and spoken to within a few hundred feet of the place of the explosion and within the space of five minutes after it had occurred. John Crowley testified at the trial that he was standing at the corner of Steuart and Mission streets just after the explosion had occurred; that he knew Billings and saw him there right after the explosion occurred; that, when the band began to play a patriotic air and every one else took off their hats, Billings did not take off his hat, and was called to by a man in the crowd to ‘take off your hat,’ whereupon Billings moved away toward Howard street. He is positive in his identification of Billings, and states that he ‘cannot be mistaken about it.’ This witness was also unshaken upon cross-examination, and the only way in which he is now sought to be discredited is by a showing that in the year 1911 he was convicted of failing to support his wife, and was admitted to probation. This, as we have seen, is not a sufficient ground for disregarding wholly the positive testimony of this witness, who is [210 Cal. 678] not shown to have had any interest or motive for falsifying in this particular case.
There is another and very significant body of evidence to be considered in relation to Billings’ part, if any, in this terrible crime. After the explosion had occurred, a considerable amount of material was picked up upon the scene or extracted from the bodies of the victims indicating the content of this time bomb prior to its explosion. The District Court of Appeal made the following comment upon the evidence thus collected and the connection of Billings with the manufacture of the bomb established thereby. It said: ‘The devilish ingenuity which constructed this infernal machine did not rest content with placing in it the explosive alone. It was filled with pistol cartridges, with pieces of iron pipe, and with steel balls like unto the ball bearings of automobiles. From the debris of the explosion and from the bodies of the dead and wounded many of these articles were discovered and introduced in evidence. * * * When the defendant was arrested his room was searched, and in his room was found a can of bullets and pistol cartridges like those placed in the infernal machine. Automobile ball bearings were also found in his room. The defendant admitted that this can and its contents were his property, and said he ‘used them when it was thought necessary.’ Asked where he bought them, he said he did not remember.’
It will be seen from the foregoing that the case against Warren K. Billings at his aforesaid trial did not rest wholly for its support upon the testimony of the eyewitness to the placing of the suitcase at the place of its explosion, John MacDonald. Aside from the testimony of that witness, to which we shall presently recur, there was and is sufficient evidence in this record to create at least a strong probability that Warren K. Billings was one of those who plotted, prepared for, and finally perpetrated this unspeakably infamous and inhuman crime. In this connection it is to be remembered that the presumption of innocence which attended the defendant at all stages of his trial and up to the moment of the verdict and judgment ceased with such judgment. Upon motion for a new trial, upon appeal, and also, we are satisfied, upon this instant proceeding, the presumption of the integrity and correctness of such verdict and judgment prevails, and in so doing places upon the defendant and applicant herein the burden of making such showing as shall [210 Cal. 679] convince our reason that he is entitled to a recommendation for pardon, either because he was and is an innocent man wrongfully convicted through false and perjured testimony, or because, though guilty, he has so far reformed and repented of his crimes and of the evil courses and criminal motive which led to their commission as to be entitled to our merciful consideration, or because by his punishment thus far imposed he has sufficiently expiated his offense. The only one of these three alternatives upon which the applicant urges our recommendation for a pardon is that his conviction was brought about by the false and perjured testimony of certain witnesses, and chiefly by that of the witness John MacDonald, who was the only eyewitness to the defendant’s immediate part in placing the suitcase containing the time bomb at the place of its present explosion. With the foregoing background, we address ourselves to a consideration of the testimony of John MacDonald presented at the defendant’s trial and to his subsequent attempt, as embodied in his ex parte affidavit, to retract certain portions of his said testimony.
On the afternoon of July 22, 1916, within a short time after the explosion, John MacDonald, a waiter by calling, but who was not working at the time, having recently been released from a hospital where he had been under treatment for a stomach affection, told several persons with whom he casually came in contact that he had seen a man deposit the suitcase which had exploded at the place where it had stood prior to the explosion. In these conversations he described and repeated in detail the appearance and actions of the man and also of his confederate who had apparently been awaiting his coming in a nearby saloon. He was advised to tell his story to the police. Accordingly on the following Monday morning John MacDonald went voluntarily to the police department, where he met Duncan Matheson, lieutenant of police, to whom he told his story, which, according to the testimony of Matheson given during the trial, was ‘substantially what he said here on the witness stand.’ He did not at that time personally know either W. K. Billings or his associate at the scene of the explosion, T. J. Mooney, but, when these two men were arrested a few days later and he was brought into their presence, he identified them and each of them as being the men whom he saw [210 Cal. 680] in connection with the suitcase a few moments before the explosion. At the time John MacDonald first told his story and at the time he identified the two men, no inducements were held out to him so to do, and no reward for the arrest and conviction of the perpetrators of the crime had been offered. The trial of Billings began on September, 11, 1916, and occupied eleven days. On September, 18th MacDonald was called to the witness stand and sworn, and, after stating that he had been at the corner of Steuart and Market streets a few moments before the explosion occurred, was shown a picture of the scene, whereupon he identified the place where he was standing when and where he saw the defendant, Billings, first upon the scene. He then proceeded to describe in detail and with but little questioning on the part of the prosecuting officer the appearance, conduct, and actions of Billings from the time he came into view with the suitcase and placed it upon the sidewalk down to the moment when the latter disappeared from the scene a few moments before the explosion. His description was circumstantial. His reasons for his particular observation of both Billings and T. J. Mooney, whom he met upon the spot, bore every semblance of sincerity and truth, and were in accord with what would, it seems, have been the natural conduct and actions of men engaged in such a perilous and nefarious enterprise. His identification of Billings was positive and complete, and, when he was asked the question, ‘You observed him across the street and are positive he was the man?’ his answer was ‘I certainly am as God is my judge; ’ and when later and on cross-examination he was asked, ‘By whom was he accompanied at the corner?’ he replied, ‘By a man that I afterward picked out as Mr. Mooney; ’ and when further asked, ‘Are you as sure that it was Mr. Mooney as you are that it was Mr. Billings?’ he answered, ‘Yes, sir, just as sure as I am sitting in this chair.’ His cross-examination proceeded at considerable length, during the course of which MacDonald repeated without material variation the statements which he had made upon his direct examination with, if anything, more of detail, consistency, and assurance. At a later stage of the trial he was recalled to deny that he had made to a witness produced by the defense any other statement inconsistent with that to which he had testined upon the trial. Upon the trial of T. J. Mooney, as the records [210 Cal. 681] of this court disclose, held in the following month, John MacDonald was again called as a witness and again repeated, with the same consistent detail and circumstance, the statements to which he had sworn upon the trial of Billings, and was again subjected to a searching cross-examination, during which his story and particularly his identifications remained unshaken. Both of these defendants were convicted of murder in the first degree, the latter with the death penalty, but in the case of Billings, possibly on account of his youth, possibly because of the closing remarks of counsel for the prosecution to the effect that there was some hope that Billings, who is described as a ‘mere puppet,’ would sooner or later tell the whole story of the crime, recommended life imprisonment. Both of these convictions were affirmed upon appeal during the succeeding year.
John MacDonald remained in San Francisco for the following three years, working at his calling as a waiter, during the course of which there was much public agitation and discussion, both in and out of the courts, over questions, controversies, and personages revolving about the cases and convictions of both Billings and Mooney. During that period John MacDonald made no sign. He later went to Maryland, where certain of his relations lived, and engaged there in several occupations, but finally returned to his old calling as a waiter, in which he was engaged when in the year 1921 he went to the city of New York to the office of an attorney named Frank P. Walsh, to whom he was sent by those in charge of the New York office of Mr. Burke Cochran, the lawyer who had conducted the defense of T. J. Mooney, as one who had been active, or at least interested, in the latter’s release. In the office of said Walsh the affidavit was prepared which John MacDonald then and there signed and swore to before a notary public. It is this affidavit of John McDonald upon which the applicant herein most strongly relies in the proceeding now before us. It is to be observed at the outset of our consideration of the effect to be given to this affidavit that it is purely an ex parte affidavit, and that as such it cannot be accorded the force or effect to which its statements would be entitled if made in the course of a public trial, or even if given as a deposition before a commission, wherein interested parties would be afforded the privilege of cross-examination calculated to disclose the motives and [210 Cal. 682] influences which had led the affiant to change his testimony to any extent from that given by him upon the trials of Billings and Mooney five years before. The fact that this affidavit was thus ex parte and was made under the conditions attending its execution requires us to examine its content with more than ordinary care and scrutiny for the reason, if for none other, that the person making it is placing himself in the class of a self-confessed perjurer to the extent that he is seeking to contradict or minimize his sworn and specific testimony given several years before upon a public trial, the result of which has long since become final in so far as a further recourse to the courts is concerned. When we come to consider the affidavit of John MacDonald in detail, we discover that the main gravamen of its statements consists in an attempted showing that his first identification of Billings as the man he saw placing the suitcase at the place of its explosion was brought about by the crude and archaic plan on the part of the police officers of calling Billings from his cell by name and thus presenting him for the affiant’s identification, and that the same precedure was had in the case of Mooney. If it be true, as the affiant states, that his first identification of these two men was procured through such crude and improper means, that fact occurring in the presence of each must have been fully known to both Billings and Mooney when each was placed upon trial, and, being so known, would, in reason, have been communicated to their able and zealous council; and it is unbelievable that, if so communicated, they would not have taken full advantage of it to bring into discredit the affiant’s identification of these two men as sworn to by him at their respective trials. Yet nothing of that kind occurred, nor was the slightest showing attempted at either trial by cross-examination or otherwise to the effect that the affiant’s identification of these defendants had been brought about by any such irregular means. We are satisfied, therefore, that the affiant’s statements in the foregoing respect is a tissue of falsehoods. The falsity of MacDonald’s affidavit in the above respect casts its discrediting shadow upon the further statements therein which relate directly to the matter of identification. The affiant’s statement is, ‘I did not know Billings and did not remember ever having seen him before and could not identify him had Lieutenant Goff not brought [210 Cal. 683] me to his cell and told me who he was’; and again, with reference to Mooney, he states, ‘I did not know Mooney and could not have told him that that was Mooney had Lieutenant Goff not pointed him out to me in the cell.’ The foregoing two sentences contain the only two statements in the MacDonald affidavit wherein its affiant undertakes to directly cast discredit to his sworn testimony given at the trial of both Billings and Mooney, wherein he positively, and, as we have seen, emphatically, identified these two defendants as having participated in the placing of the time bomb at the place of its explosion.
However much MacDonald may have sought to discredit himself and his former testimony by the making of such an affidavit, we are satisfied that placing his two conflicting statements together and considering each in the light of the circumstances under which it was made, the original testimony of John MacDonald as given with so much of circumstance and detail upon the trials of each of these men, within a short time after the occurrence of the tragedy for the causation of which they were being tried, bears the stamp of truth, while, on the other hand, this belated affidavit, wherein he undertakes with so much of intermingled untruth to cast discredit upon his former testimony bears the stamp of falsity, and that the substance and effect of this affiant’s former positive and damning identification of both of these men as the perpetrators of this foul crime has not been thereby overthrown. Reading the MacDonald affidavit as a whole, and in the light of the foregoing consideration of its essential content, it would seem upon its face to have been inspired by MacDonald’s reiterated sense of injury and complaint against the police department and public officials of San Francisco because he failed to receive the reward which he claims to have been promised by them or certain of them, but which promise, he claims, had been violated. This seems to constitute the main gravemen of MacDonald’s affidavit and, so far as its face discloses, his chief motive in having made it at the time he did. What other motives or influences may have inspired him to travel from his home in Maryland to the offices of the legal counsel for one of these defendants in New York we may not even attempt to surmise. It may be stated, however, that, upon the receipt of this application, the members of this court felt that some effort should be made to [210 Cal. 684] locate John MacDonald with a view to such further questions as might serve to shed light upon the circumstances and motives attending and animating the making of the affidavit in question; only to find that MacDonald had apparently disappeared. Some publicity having been given to our disposition in that regard, the applicant herein on May 4, 1930, addressed a letter to the members of this court, stating that some such rumor had reached him and that, ‘being the applicant in propria persona, I consider it my right to suggest that inasmuch as neither the constitution of the state nor the Penal Code specifically provides any such jurisdiction for the investigation or carrying on of private investigation in matters of appellate jurisdiction, that it is not the intention or spirit of either the Constitution or the code to grant such powers or such jurisdiction to the court in matters pertaining to an application for recommendation to executive clemency, which action is very much in the nature of an appeal from the findings of a lower court. It is my contention that the court must, under the statute, decide the matter upon the record of the case, supplemented by such sworn testimony as may be filed with them in the form of affidavits and such briefs as may be submitted by the applicant.’ Without determining definitely what the powers of this court of its membership may be in the premises, or in any like situation, we have herein accepted and acted in accord with the applicant’s views as above set forth, and have confined our investigation of this matter to the record and material presented with this application and to our own official records and those of the appellate court relating to the trials and appeals of these two defendants. We have considered the various letters and communications of those persons who, with varying motives, have seen fit to recommend the granting of a pardon to this applicant. These, however, are rather for the consideration of the chief executive who, subject to the above constitutional provision, is charged with the ultimate discretion of granting or withholding executive clemency with respect to persons convicted of crime. The foregoing mass of material presents no judiciable issue, and does not, therefore, come within the purview of the powers with which the members of this court are invested by the terms of the Constitution and statute above cited. We have given to the matters which are [210 Cal. 685] properly before us a prolonged and most careful consideration, both on account of the gravity and atrocity of the crime of which this applicant stands convicted, but also because of the widespread interest in the cases of Billings and Mooney which has been awakened in the public mind. It is by reason of this latter situation that we would wish to add to our foregoing review of the record before us certain further reflections, based also upon the record and material submitted for our consideration, and germane, we think, to the responsibility and duty with which we have been invested.
The application for pardon of Warren K. Billings, as presented to the chief executive and as forwarded to us, is not an application for executive clemency or for our recommendation that it should be exercised, based upon any claim supported by any affirmative showing that, with relation to the Preparedness Day tragedy, Billings is an innocent man. The utmost effect of all that has been herein proposed or presented is to cast doubt upon the regularity of his conviction. We have, as has been seen, arrived at the conclusion that sufficient doubt has not been thus cast upon the regularity of the conviction of Warren K. Billings of the crime for which he is now undergoing punishment to justify a recommendation that he be granted a present pardon. We might well let the matter rest here, but in view of the widespread public interest which by various means and methods has been aroused in this and its companion case, we deem it our duty to direct attention to the fact that the applicant herein has made no attempt to offer anything in the way of an affirmative showing that with respect to the crime in question he is in truth and in fact an innocent man. We are brought to the conclusion that the applicant was bound to tender some such showing as a basis for his application for a pardon, in view of his prior conviction of a cognate crime and of the other facts and circumstances which, as we have heretofore stated, point gravely, even if not conclusively, to his participation in the later crime. The record sufficiently shows that prior to and at the time of his conviction of his former offense he was the friend and associate of an organized group of persons, men and women who were actively engaged in plotting, attempting, and even executing crimes of violence against both property and persons, not only during labor [210 Cal. 686] disputes, but generally, as a means of uttering their protests against both the political and industrial forms and movements of modern society. The evidence further discloses that between the commission of the first and second crimes this fellowship and association on the part of Billings continued to exist, with the fair inference at least and with no showing to the contrary, that the opinions, motives, purposes, and passions which had moved him to commit his first crime still continued to rule his life. There is sufficient in the record before us to show that the deliberated and fiendishly prepared for crime of Preparedness Day was in all human probability conceived and carried forward to its execution by the same group of evilly disposed individuals whose friend and associate Billings for several years had been and into the inner councils of which he was wont to come and go. It is a matter of public history that for several weeks prior to the Preparedness Day parade there had been going forth from the inner councils of this group of persons a rabid opposition to the holding of said parade, coupled with all sorts of suggestions by public speaking and newspaper propaganda as to how this patriotic demonstration could be discouraged or prevented, even to the extent of the advocacy of violence as a means to these ends. It is fairly inferable from his past and present affiliations that Warren K. Billings was familiar with the plots and plans of this group of his most intimate associates, and, this being so, it is an almost irresistible conclusion that, if Warren K. Billings did not himself prepare and plant the deadly time bomb of the Preparedness Day disaster, he and his intimate associates and codefendant Mooney know, and have always, both before and since the occurrence of that tragedy, known, who did prepare and plant that bomb, and the deadly purpose for which it was prepared and planted. Yet there has never come from the lips of either of these defendants, or from out the inner circle of their associates, the slightest tangible hint or aid to the public officials as to any one else which might lead to a discovery of the real perpetrators of this revolting crime, if these two defendants were not the guilty ones; nor has there ever come to public notice during all the years which have elapsed since the commission of the Preparedness Day crime the slightest clue or trace which might serve to point public official inquiry to any persons or group of persons other than these defendants and their associates who might reasonably be suspected or charged with the disposition to conceive or commit such a crime.
From the foregoing considerations, and from the inferences which we think are fairly deducible therefrom as to the actual or probable guilt of this applicant, we are unable to recommend to Your Excellency a consideration of the application of Warren K. Billings for pardon.
Dated: San Francisco, California, July 2, 1930.
WILLIAM H. WASTE, Chief Justice., EMMET SEAWELL, Associate Justice, JOHN E. RICHARDS, Associate Justice, JESSE W. CURTIS, Associate Justice.
To His Excellency the Governor of the State of California:
Permit me to make the following observations with reference to the application of Warren K. Billings for pardon:
In his letter to the members of the Supreme Court, of date May 4, 1930, the applicant has insisted that the powers of the member of the court in deciding whether a pardon should be recommended are limited to a consideration of the record before us and that the same should be considered in the nature of a cause pending before us as upon appeal.
The treatment of the subject signed by a majority of the members of the court, and to which this is appended, is on the theory thus insisted upon by the applicant. From that standpoint the reasoning and conclusions of the majority are, in my opinion, unassailable. But my conception of the powers of the members of the court in the premises is that they are not so limited. The application is addressed to the individual conscience and discretion of each member, to be acted upon, not strictly as a court matter, but as one to be considered with the same latitude exercisable by the chief executive, who has the right, I take it, to employ any and all proper means in an endeavor to arrive at the truth, and [210 Cal. 688] in so doing is not limited to the affirmative showing made on the application. The means should be made available, as occasion might require, to disclose the circumstances and conditions under which a witness, thoroughly examined and cross-examined at a public trial, has later cast reflections upon or repudiated his former testimony, given under oath in open court. Such circumstances and conditions can only be surmised on a consideration of MacDonald’s ex parte affidavit, for example, made five years after the trial and presented to us eight years after it was made. The important thing is to arrive at the truth of the matter, and, in order to do so, we should have the power to employ any appropriate means to satisfy ourselves of the truth or falsity of the repudiation, especially in the absence of any statute or rule governing the procedure in the premises. If we should exercise that power, it might be that the truth would be satisfactorily brought to light, either for or against the application. On the showing now made by the applicant, I do not entertain a sufficient doubt of the justness of his conviction to warrant a recommendation for pardon.
Respectfully submitted,
JOHN W. SHENK, Associate Justice.
To His Excellency C. C. Young, Governor of California:
The crime committed on July 22, 1916, was a direct assault upon organized government.
Those killed or maimed by this explosion were no more the objects of this fiendish plot than other members of society. They were victims only because they happened to be within the range of the deadly missile. The state could not be expected to remain supinely inactive in the face of this outrage. It has within its keeping the liberty and rights of its citizens. It acted in this matter by bringing the petitioner to trial. Concededly the trial was a fair and impartial one. Indeed, the trial court excluded evidence tending to show a conspiracy between the petitioner and others, which might well have been admitted. No evidence whatsoever is present to show any misfeasance or oppression by any officer connected with the prosecution of the case
[210 Cal. 689] Some of the general aspects of the case are: The petitioner has been previously convicted of a crime which showed a distinct leaning toward sabotage and sabotage is akin to anarchy. His associations, as well as other actions, showed a like tendency.
The record, speaking in a legal sense, was ample to warrant the conviction of petitioner. In the same sense it is equally true that nothing has subsequently occurred which would overthrow this record. The data submitted is not in form, sufficiency, or authenticity to permit its introduction as legal evidence. Ex parte affidavits are not ordinarily admitted because no opportunity has been given to test the truth of the one-sided statements made therein. Moreover, an affidavit taken in 1921, some five years after date of conviction, and held some eight years more before actual use thereof is made, loses much of its value.
On top of the above showing comes the petitioner himself, evidently acting under legal advice, and protests against any efforts on the part of the members of this court to verify these affidavits by trying to ascertain the circumstances under which they were made or the reasons which prompted the variation by the affiants from their previous repeated testimony given where both examination and cross-examination was had.
We are thus practically required to examine the record purely in its legal aspects.
Moreover, the petitioner rests his claim for a pardon upon his innocence. This does not follow as a certainty from the showing he makes. The most that could be claimed for it is that a doubt has arisen as to the sufficiency of his identification. He does not come forward with any showing that points to the perpetration of the deed by another, thus proving his own innocence. No legitimate explanation of the crime, consistent with his innocence, is offered. Fourteen years have elapsed and nothing has been revealed to show that the perpetrator was some other person.
If the petitioner were merely claiming that the issue is one of identity and that subsequent events have cast a doubt upon the sufficiency of such identification, I, for one, would feel inclined to give careful consideration to this plea upon an application by him for a commutation of sentence. Identity [210 Cal. 690] is a form of opinion evidence, and hence has a certain amount of inherent weakness. In this case, as practically none of the witnesses knew petitioner personally, a legitimate doubt might now be engendered as to the verity of the identification made. But petitioner does not appear before us in this role. He apparently insists upon pardon, which would carry with it the inference that he was innocent and was convicted by illegitimate means.
I cannot concur in any such view of the case; hence I am joining with the majority in withholding at this time a recommendation for his pardon.
Respectfully,
JOHN W. PRESTON, Associate Justice Supreme Court.
Dissenting Report.
I do not concur in the majority report. The Constitution of the state of California (art. 7, § 1) provides that ‘neither the Governor nor the Legislature shall have power to grant pardons, or commutations of sentence, in any case where the convict has been twice convicted of a felony, unless upon the written recommendation of a majority of the judges of the supreme court.’
A majority of the judges of the Supreme Court have refused such recommendation. There is no provision in the law for a minority recommendation, and such a recommendation is wholly ineffectual for any purpose, as also is a statement of the minority’s views. It seems to me sufficient to state that, upon the record now before us, I am not so free from doubt of petitioner’s guilt as to withhold a recommendation for executive clemency and thus preclude the governor from taking such action upon the application as in his judgment he may deem proper.
W. H. LANGDON, Associate Justice of the Supreme Court.
On Rehearing.
[210 Cal. 691] To His Excellency, C. C. Young, Governor of California, Sacramento, California:
Dear Sir: The Justices of the Supreme Court have concluded their consideration of the petition of Warren K. Billings for a pardon, and report herewith the result of their investigations.
Having granted the petition of Billings for a reconsideration of his application, following the report made to you in this matter on July 2d of this year, it was decided to conduct a public hearing. That was done, and the hearing extended over the greater part of a month, and included a visit by the justices to the state prison at Folsom for the purpose of taking a personal statement of the applicant.
This entire proceeding appears to have been regarded by a considerable portion of the public and the press as a new trial of the petitioner, during which he should, at all times, have been accorded the presumption of innocence. We have not, and do not, regard it in that light. On the contrary, petitioner comes here, after his conviction in our constitutionally established courts by a jury, in a trial at which he was accorded every opportunity to establish his innocence. He is not now entitled to the presumption of innocence, but stands here with the burden resting on him to satisfy the pardoning power that he is entitled to executive clemency.
Many witnesses were examined and much documentary evidence was received during the public hearing, and, upon its conclusion, the matter was kept open in order that both the petitioner and those representing the people might present any further evidence and make any further showing relevant to the cause. There have accordingly been filed a number of affidavits, and due and careful consideration has, in the meantime, been given to the evidence produced before us. The testimony taken at the hearing has been written up, and a transcript is transmitted to you herewith.
Certain members of the court have prepared and submitted separate analyses of the evidence taken by the justices and their individual conclusions: Mr. Associate. Justice JOHN E. RICHARDS, who was a member of the District Court of Appeal [210 Cal. 692] which considered the Billings appeal following his conviction, has prepared a summary of the cause, and his conclusions in connection with the present hearing. Mr. Associate Justice JOHN W. PRESTON, who conducted the major examination of the petitioner and the witnesses at the present hearing, has prepared a critical analysis of the testimony, and has announced his individual conclusions. Mr. Associate Justice JOHN W. SHENK and Mr. Associate Justice EMMET SEAWELL have written their individual conclusions. Mr. Associate Justice WILLIAM H. LANGDON has also prepared a statement of his own conclusions and analysis of the evidence, from which he is unable to agree with the majority of the justices. These documents are transmitted to you herewith.
As the result of our deliberations, the undersigned justices share in the main conclusions of Mr. Justice RICHARDS, Mr. Justice SHENK, Mr. Justice SEAWELL, and Mr. Justice PRESTON, and in their analyses of the testimony taken.
We are therefore of the view that the petitioner, Warren K. Billings, has not made out a case for the granting of a pardon, and we are accordingly unable to recommend that such action be taken.
Mr. Justice LANGDON recommends that executive clemency be granted.
Dated: San Francisco, California, December 1, 1930.
WILLIAM H. WASTE, Chief Justice, JOHN E. RICHARDS, Associate Justice, JESSE WILLIAM CURTIS, Associate Justice, EMMET SEAWELL, Associate Justice, JOHN W. PRESTON, Associate Justice, JOHN W. SHENK, Associate Justice.
[210 Cal. 693] Conclusions of Mr. Justice RICHARDS.
To His Excellency, the Governor of California:
When this matter was first presented to the members of the Supreme Court for their action, in conformity with the constitutional requirement as to second-term convicts seeking executive clemency, it was considered upon the then available record, in response, though not altogether in agreement, with the demand of the applicant that its consideration must be so confined. When, however, a further hearing was accorded him, upon a new application which involved the production of evidence beyond the scope of the record as formerly presented and when, in connection therewith, there arose a widespread demand in the public mind for a knowledge of the whole truth and for an end of misconception and misrepresentation as to the character of the applicant, as to the fairness or unfairness of his former trial, as to the acts and conduct of the police department and official prosecutors of the city and county of San Francisco with relation to the identification of the accused and the presentation of such witnesses as came forward to testify to the facts and circumstances relied upon to connect him with the crime, of which he and others stood charged, and as to certain events following his conviction of such, crime, the members of the court concluded to open the entire subject to such an inquiry as would enable the world, in so far as was humanly possible, to learn and to judge the truth respecting the identification, the trial and the conviction of this applicant, the bearing which subsequent events affecting certain witnesses against him had thereon, and the probability or improbability of his guilt. This course was taken advisedly, and we now deem it wisely notwithstanding the prolonged hearing and its great and serious draft upon the time of the justices of the court.
We trust that our conclusions regarding this matter now to be expressed will satisfy not only the Governor of California, to whom they are immediately addressed, but will also satisfy and finally set at rest the public mind as to the truth of such conclusions, and also as to the wisdom of our course in their ascertainment and statement at the present time.
[210 Cal. 694] There were certain important factual conclusions deduced by us upon our former consideration of this matter from the rather incomplete showing there made, but which, upon rehearing, have been established beyond the realm of possible doubt. The first of these relates to the integrity and propriety of procedure and conduct on the part of the police department of San Francisco and of each and all of its members, and also on the part of each and all of the prosecuting officers thereof during the entire course of the investigation, as to the possible perpetrators of the Preparedness Day crime, and as to the identification, arrest, trial, and conviction of the defendant, Billings, charged, with others, with its commission. The affirmative proof placed before us upon this later hearing was such as to satisfy every reasonable mind as to the truth of the foregoing statement and of our former findings thereon. Upon this hearing, however, this assurance was made doubly sure, and was, in fact, removed from all peradventure of doubt by the frank, open, and unqualified admission as to its truth by the counsel for the applicant himself. We therefore declare the foregoing statement of our former conclusion to have been absolutely and unqualifiedly established and affirmatively conceded upon the recent hearing. We place emphasis upon this result for the present reason that for the past several years there has persisted, with direct reference to the case of Billings, a widespread propaganda of misrepresentation and falsehood affecting the integrity and official conduct of the San Francisco officials in their investigation of and effort to apprehend and punish the perpetrators of this most dastardly crime, and which propaganda of misrepresentation and utter falsehood we earnestly trust will now and forever cease.
There are certain inevitable sequences to be drawn from the foregoing fully established conclusion which we shall later discover and discuss.
The second conclusion announced in our earlier findings, which to our minds became fully and finally established upon the recent hearing, was as to the fact that on the date of the crime, and within a half hour, or even less, of its commission, Warren K. Billings was seen and positively identified by several witnesses as being at the premises consisting [210 Cal. 695] of a low, two-story building known as 721 Market street in said city. Thus our former finding was not only strengthened by the entire absence of any attempt upon the later hearing to impeach or otherwise discredit the testimony of the witnesses Wade and Moore, who had so testified upon the Billings trial, but by the further fact that the persistent and diversified effort to discredit and destroy the testimony of Estelle Smith, who, upon said trial, testified with much more of detail, but with not less certainty, to the same effect, but who it was later charged had repudiated, by both written statement and affidavit, her said testimony. We did not, for this latter reason, upon our former review of the record place much, if any, reliance upon the testimony of Estelle Smith as given at the Billings trial, nor did we essay the initiative in the way of procuring her presence and evidence at the recent hearing. But Estelle Smith voluntarily appeared at such hearing, and, upon being sworn as a witness, not only repeated in substantial language, detail, and effect her testimony as given upon said trial, but further proceeded to explain her later purported repudiations of such testimony as to relate in detail the circumstances under which and by whom such repudiations had been sought, suggestionized, and procured. We will not here go into detail with respect to this sordid and discreditable matter as to all concerned further than to say that we are satisfied that Estelle Smith told, as nearly as such an emotional voluble impressionable personage could be expected to tell it at a public trial, the truth as to the main episode of her contacts with Warren K. Billings with a suitcase at 721 Market street a short while before the Preparedness Day explosion, that her repetition of such testimony as to the substantials of her former story was also true, and that her story as to the persons and circumstances connected with her later repudiations of her former testimony bears so far the evidences of sincerity and truth as to satisfy our minds that the means employed in the effort to intrigue, overpersuade, suggestionize, and seduce her into repudiation of her former truthful testimony savored strongly of subornation of perjury. The testimony of Estelle Smith as given at the Billins trial and as later repeated before us dovetails in its essential circumstances, in so far as the identification of [210 Cal. 696] Warren K. Billings and having been seen with a suitcase at 721 Market street is concerned, perfectly and with quite surprising exactitude into the evidence of School Teacher Wade and Policeman Moore, and in so doing further satisfies our minds as to the actual presence of Billings with a heavy suitcase at said time and place; that the suitcase was of such size, weight, and general appearance as to form and color as would serve to sufficiently identify it with the time bomb filled suitcase which a short while thereafter exploded at Steuart and Market streets. The testimony of Estelle Smith is also in singular accord with the testimony of Policeman Moore as given at the former trial that the Ford jitney which was seen by him standing in front of 721 Market street at the same moment when he saw Billings there, that Billings evidently knew its owner and whereabouts, and that said car and Billings had both disappeared when he returned a little while later.
The third conclusion which we arrived at upon our first report related to the presence of Warren K. Billings at the corner of Steuart and Mission streets without said suitcase a few moments before and after said explosion, and to the truth of what there occurred according to the testimony given upon the Billings trial by the witness J. J. Crowley. This witness asserted that he knew Billings personally, but, even if he did not, the positiveness of his testimony removes all doubt as to his identification of him and as to his presence there without a suitcase, if the statement of Crowley is to be believed. Upon said trial he was unshaken upon cross-examination, and he was not impeached by any attack upon his reputation for truth and integrity, or by any other means than the production of some proofs that he had been involved in troubles with his wife and had some moral shortcomings, which could not be held to affect his testimony as a disinterested witness at that trial. Crowley entered the service during the World War and died in the destruction of a transport by a submarine. He could not, therefore, be produced at the present hearing; but a witness named Claiborne presented himself, with much show of standing and assurance, to testify that at the time when Crowley testified as to his having seen Billings at Steuart and Mission streets, he was actually under the witness’ car [210 Cal. 697] within the garage where he was employed, and hence could not have seen Billings at the time and place to which he testified. Within a few hours, however, the mask of respectability fell from the face and form of Claiborne when it was made to appear that the latter was a felon, convicted of perjury in the year 1915, and an all-around scamp, entitled to little or no credence, and a little while later his credibility was utterly destroyed and that of Crowley rehabilitated by the evidence of Mr. Jones, who testified that, at the time fixed by Crowley’s evidence he (Crowley) was in and out of the garage, of which Jones was part owner, and that he was so far trusted as to have full and free access to the cash register of the garage. We conclude, therefore, that the fact of Billings’ presence at Steuart and Mission streets on the afternoon of the explosion and a few moments after it occurred without a suit-case was and is a fully established fact upon both the former and the present hearing.
The conclusion which we thus reach upon the last two matters of fact, viz. the presence of Warren K. Billings at 721 Market street a short while before the explosion with a suitcase generally similar in its externals and also in its estimated weight with the suitcase which concealed the deadly explosive, and the presence of Billings at Steuart and Mission streets without a suitcase a few moments both before and after the explosion, leads our inquiry to two vital conclusions. The first of these is that the several former alibis of Billings disappear from the case as utterly as though they had never been offered in testimony; while his later alibi with respect to his being occupied on Preparedness Day in throwing acid upon newly painted automobiles in order to make work for striking painters, is in no wise inconsistent with the double occupation of carrying a time bomb to the place of its explosion, and only serves to show this applicant to be that which he describes himself to have been at the very time, viz. a lawless mercenary, ready to commit any act of villainy for pay. The second conclusion to which in reason we are forced by the finality of the foregoing facts is that, since Warren K. Billings has been sufficiently proven to have been at 721 Market street with such a suitcase as might well have concealed the deadly bomb only a short while before its explosion, and since he has also been sufficiently [210 Cal. 698] proven to have been at Steuart and Mission streets without a suitcase a few moments after the explosion, and since his alibis as to his whereabouts in the intervening time have disappeared, it was incumbent upon Warren K. Billings upon the present hearing to offer some affirmative showing that he did not in fact commit the crime of which, upon his former fair, full, and impartial trial, he was convicted. He has made no such showing. On the contrary, he has furnished us largely from his own lips the history of his life, from which it appears that he was born and reared an outcast in the slums of the city of New York. He entered early upon a career of crime and violence. He was convicted of the possession of burglar’s tools while yet a minor, and confined in prison at Elmira, N.Y. He chose the career of a burglar and came west with his burglar’s tools. He stopped over long enough in Utah to become familiar with the use of dynamite in mines. He then came on to California, where he joined a union and went to work in a shoe factory. When shortly thereafter a strike occurred among its employees, he remained, with pretended but false loyalty, with his employers, and was allowed to sleep in the factory; but he reported regularly to T. J., Mooney, one of the pickets of the strikers outside. During the course of the strike a considerable quantity of shoes in the course of manufacture was mutilated by acts of sabotage. The watchman discovered Billings in suspicious proximity to the place of such mutilation, and, in the struggle which ensued, the watchman was shot by Billings and almost killed. He was arrested, but his trial dragged until the strike was over, when he was discharged. He went to live at the house of the notorious Belle Lavine, whose home was the rendezvous and hiding place of the McNamaras, of Smith and Kaplan, the confessed or convicted dynamiters of the Los Angeles Times building. He began hiring himself out to steal dynamite during strikes and to convey dynamite during strikes use in destroying property during labor troubles. He was hired by T. J. Mooney upon at least one occasion to do this nefarious work, and upon another occasion by an official of the Electrical Workers’ Union, whose name he frankly, but whether falsely or truly, tells, to carry sixty-six pounds of dynamite in a suitcase from Oakland [210 Cal. 699] to Sacramento to be used in blowing up the towers or other works of the Pacific Gas&Electric Company in that region. He was arrested upon arrival in that city while still in possession of said dynamite and with the detonating caps in his pockets. He also was found to have upon his person his burglar’s tools, which he frankly admits he proposed making use of in committing burglaries during the state fair. He was brought to trial and convicted of the unlawful possession of explosives for felonious purposes and served his term in Folsom until his parole, between the years of 1913 and 1915, upon that conviction. Upon his release in the latter year he returned to his old habitudes and associations in San Francisco, varying his vocation as a burglar by acting, according to the frank admissions of his counsel, as a labor spy during strikes during the first part of the year 1916, and later and in the early summer of that year was engaged by a labor leader of the Machinists’ Union to commit acts of sabotage upon automobiles, consisting of applying an acid or paint remover upon late models, the local agents for which were employers who were refusing to employ union machinists. During all of these later years the intimate associates of Billings, or his occasional employers who hired him to act as a spy or mercenary in the perpetration of unlawful and criminal acts, were to be found among a group of anarchists, at that time well organized and operating in San Francisco, the leaders of which were Alexander Berkman, Edward Nolan, Emma Goldman, Thomas J. Mooney, and others, who in the main were members of various revolutionary groups, including the I. W. W., and who during the first half of the year 1916 were engaged in the publication known as The Blast, the columns and articles of which were in each issue filled with editorials and personal communications violently assailing the growing policy of ‘preparedness’ on the part of the federal government and its citizenship, and which augmented to the point of holding simultaneous Preparedness Day celebrations, processions, and exercises during the month of July all over the land. These published assaults were of the most violent and unpatriotic character, recommending all sorts of desperate expediencies and even acts of violence for the purpose of discouraging, preventing, and interfering with the holding [210 Cal. 700] of such patriotic exercises and parades. It would seem to be a foregone conclusion that the mind and purposes of Warren K. Billings would, both by his associations and by the lawless enterprises in which he was then engaged, be strongly infected with disloyalty to the extent of being willing to do whatever stronger, more cunning, but less courageous men of the type above described would urge, plot, scheme, and suggest in the way of direct action, constituting an actual and violent interference with the holding and progress of the Preparedness Day parade. He was, according to his own life story, just the readymade mercenary for such an unlawful and disloyal undertaking.
That the Preparedness Day explosion, which occurred at the hour of 2:06 p. m., July 22, 1916, was caused by the placing of a time bomb contained in a suitcase which a short while theretofore had been deposited at or near the corner of Steuart and Market streets by the deliberate act of some person or persons knowing its content and deadly character, may be taken to be the next fully established fact upon the present inquiry. As to that fact, our former conclusion not only remains unchanged, but it has been fortified by a further examination of the record, and also by the fact that upon the present hearing no serious attempt has been made to controvert it. The importance of the testimony of the several witnesses who testified to having seen such suitcase shortly before the explosion standing upon the sidewalk at the precise point where, as shown by the indentations in the sidewalk, the explosion actually occurred, consists chiefly in the fact that this evidence supplies strong corroboration to the testimony of the main and only witness who came forward to testify as to the actual placing of the suitcase at the indicated spot. That witness was and still is John MacDonald. That John MacDonald was at or near the corner of Steuart and Market streets at the time when the suitcase was placed at the spot of its subsequent explosion has never been seriously or successfully disputed. He himself so testified repeatedly at the several trials in which he appeared as a witness during the years 1916 and 1917. He so reiterated in his affidavit of February 7, 1921. He repeated and reiterated the truth of his statement in the foregoing regard in his several statements and affidavits made in Blatimore in [210 Cal. 701] the year 1930. In his recent appearance and testimony before the members of this court during the month of August of the present year he has uniformly and repeatedly reasseverated that he was present at Steuart and Market streets at the time when the suitcase was placed at the spot of its explosion, and that he witnessed such placement. During all of the years which have elapsed since that fatal day, and during all of the efforts which have been put forth in aid of the applicant herein, there has never been one scrap of evidence produced tending to show that John MacDonald was anywhere else than where he has continuously and consistently asserted he was at the time of the placement of the time bomb upon the spot of its explosion. His own testimony upon that subject, therefore, remains not only unimpeached by himself, not only unassailed by any showing that he was elsewhere, but is, on the other hand, strongly corroborated by the testimony of several other persons whose credibility is unattacked. It is in evidence that practically immediately after the explosion John MacDonald, stirred with the importance of the circumstances he had witnessed, endeavored to speak to a police officer who was keeping back the crowd from surging in upon the scene of the explosion, but that he was not permitted to do so. A short while later he began telling to various persons that he had seen the suitcase planted by a man whose actions he described. From thence onward during the two days which followed he told to several witnesses his story as to what he had witnessed respecting the placement of the suitcase, and which story he repeated in the presence of the members of the police department on the second day following the casualty, and from the essential facts of which he has never since varied. It must therefore be taken to be a fully established and fully corroborated certainty that John MacDonald saw the suitcase placed and saw the person or persons who placed it at the point of its explosion at 2:06 p. m. July 22, 1916.
The next step in our search for truth leads money of those several persons to whom John MacDonald told the story of what he had witnessed at Steuart and Market streets shortly before the explosion. Upon the details of the storythus related [210 Cal. 702] by him to them at different times and places during that and the following day these disinterested witnesses substantially agree. The importance of the testimony of these witnesses touching the foregoing statements of John MacDonald centers about two vital situations. The first of these concerns the fact that John MacDonald began to tell in detail what he had observed as to the placing of the suitcase almost immediately after he had learned of the explosion, the place of its occurrence, and its fatal effect. This story thus brings the matter of its relation nearly if not quite within the principal underlying statements res gestae as to raise a strong presumption as to the truth of such statements when their time relation to the occurrence removed the likelihood of any motive to falsify. The second important fact consists in the degree of circumstance and detail embraced in these first statements made by John MacDonald to the foregoing witnesses before he had come in contact with the police or official departments, and even before the publication of the details of the explosion itself. Without time for reflection, without either wit or motive to concoct a falsehood, John MacDonald related to these several witnesses certain details immediately relating to the identity of the individual who placed the suitcase at the point of its explosion, and to which details he consistently thereafter adhered during the several trials at which he was a witness in the years 1916 and 1917. To each and all of these persons MacDonald related that he had observed the man who came with the suitcase and set it down at the place of its subsequent explosion. He described the peculiar actions of the man— his turning his head from side to side, his excited actions and conduct which particularly arrested MacDonald’s attention. To these details as thus related to these several persons MacDonald consistently adhered in his testimony before the grand jury and at each of the several trials, and he has never since specifically denied the truth of his statement and subsequent testimony as to these details. It is true that some confusion exists as to MacDonald’s several statements as to the appearance of the two persons who attracted his particular attention at the time of the placing of the time bomb at the place of its explosion. These relate to the apparent height, age, and manner of dress of the two men who thus momentarily, so to speak, came [210 Cal. 703] within his observation. This confusion is partly due to the fact that the height or age of any stranger coming within the vision of any ordinary observer is a matter largely of approximation, which rarely accords with the actual facts as they are later and exactly shown to exist, and is also partly due to the fact that the police officers who undertook to take down MacDonald’s first statements upon this subject got their descriptions of the two men mixed. MacDonald’s first and later statements as to the two men whom he saw together at the time of the planting of the suitcase do not sufficiently vary as to justify the discrediting of his testimony upon that subject to any material degree. In the light of the foregoing deductions, it must therefore be accepted as an established fact that the several statements made by John MacDonald during the day of and the two days succeeding the explosion, and substantiated by said witnesses in detail as to the appearance, actions, and conduct of the two persons who were immediately concerned in the planting of the suitcase containing the time bomb at the point of its later explosion, were substantially true.
We thus arrive at the day and hour when John MacDonald first presented himself at the offices of the police department of the city and county of San Francisco for the purpose of telling his story. We may at this point properly visualize John MacDonald in personality, in character, in standing, and in moral quality, as his life history up to that time reveals him to our view. John MacDonald was born and grew up in Baltimore, Md., where some of his relatives still reside. He received some education in the public schools, but early became a wage-earner with no fixed trade, but much of his life following the occupation of a waiter in restaurants. He drifted about the country, coming to San Francisco in about the year 1911, and had lived the intervening five years prior to the giving of his evidence in the Preparedness Day trials working, in the main, as a waiter, or, when that employment failed, living at the Salvation Army headquarters, but earning his living by work. During a portion of this time prior to his testimony he had been ill and in a hospital, suffering from some form of social disease, but had been discharged as cured some time before, and was engaged in earning a living selling newspapers at the time of the Preparedness Day explosion. [210 Cal. 704] When he presented himself at the police department on July 24, 1916, the department looked him up before receiving his statement, and, finding that he had no police record and that his past life in San Francisco had been about as above stated, turned him over to Sergeant Goff for examination as to the details and truth of his story. Here occurred one of the most remarkable and significant episodes in the entire course of the inquiry into the identity and guilt or innocence of those who were or were to be charged with the commission of this atrocious crime. When Sergeant Goff, after hearing MacDonald’s story, asked him if he thought he would be able to identify the two persons whom he had stated he had seen in connection with the suitcase placement at Steuart and Market Streets, and when told by MacDonald that he could do so, the latter was shown a collection of photographs of some twenty-five suspected dynamiters, and asked to pick out, if among these, the persons he had so seen. MacDonald examined these pictures carefully, without any aid or suggestion on the part of the police officer, and presently pointed to the picture of the man whom he had seen as having carried and deposited the suitcase. It was Warren K. Billings. He then examined the pictures further and again picked out the picture of the man who had come out of the saloon. It was Thomas J. Mooney. In so doing MacDonald directed attention to the fact that Mooney, as shown in the picture, had a mustache, but, as seen by him at Steuart and Market streets, had none. The officer placed his finger over the mustache of the man as shown in the picture, whereupon MacDonald positively identified him as the man he had previously seen. When it appears from the record before us, as it unmistakably does, that MacDonald had no previous knowledge of the careers or past connections of either of these men prior to Preparedness Day, and had, in fact, never heard of or seen either of them except as he had stated, and when it further appears, as concededly it does, that MacDonald’s identification of these two men in connection with the placement of the time bomb upon the spot of its explosion, was made as above stated, his identification of them and each of them as thus made becomes a controlling factor in determining whether the testimony of MacDonald, as given a few days later before the grand jury, and as repeated at the trials of Billings and the other [210 Cal. 705] persons charged with said crime was true or false. How did it happen that this man, within two days after the commission of this crime, should have thus laid his accusing finger upon the two men of all others, either in or out of said list of dynamiters, who from their past contacts and associations should be the two individuals most likely to have conjoined in the conception and execution of the Preparedness Day crime? How does it happen that this man MacDonald, a few days later, when, first Billings, and then Mooney, had been arrested and were being held in the city prison, should have been able, without suggestion or aid from the police, to positively point out successively these two men from a number of their prisoners shown him, as the two men he had seen at Steuart and Market streets? These two identifications of each of these two men remained unimpeached as to the method and manner of their making during the course of the five separate trials at which John MacDonald gave his testimony; and they remain still unimpeached in so far as Warren K. Billings is concerned by anything in the record before us, other than the so called repudiations of his former statements made by John MacDonald in his later affidavits and evidence, but which, in so far as he attempts in these to associate with his aforesaid identifications the commission of certain improprieties on the part of the officials of the police department and district attorney’s office, have been incontrovertibly proven to be utterly false. We arrive at the conclusion that in the making of these two identifications of each of the two men MacDonald asserted himself to have seen at the corner of Steuart and Market streets in immediate connection with the placement of the time bomb filled suitcase, he truly stated and demonstrated his honest and positive conviction that these were the two men whom he had thus seen.
Within a very few days after John MacDonald had made his foregoing positive identification of Warren K. Billings as the person who had placed the suitcase at the spot of its explosion, he was called to testify before the grand jury. He did, in fact, so testify on August 1, 1916. His testimony as given before that body is quite instructive. He there for the first time told his story under oath and without question and answer. He told it with detail and circumstance, which in common experience is not the way of a [210 Cal. 706] witness who is lying, unless he has been coached, of which there is not the slightest proof. He related minor incidents which only bear collaterally upon the main story, but which an unskilled perjurer would not be likely to invent. He describes Billings as he first came within his vision as being ‘a young fellow.’ He states with precision of circumstance his actions and movements which caused the witness ‘to notice him in particular.’ His entire testimony with respect to the identity and actions of both persons was throughout marked with the freedom of expression and consecutive attention to details which are characteristic of a truthful witness, but which are lacking in a lying one, unless he has been carefully coached and has, so to speak, learned his story by rote. The grand jury were entirely convinced that MacDonald was telling them the truth, and they returned their indictments accordingly. From that time forth until the trial of Billings, which began on September 11, 1916, and lasted fourteen days, the fact that John MacDonald was to be a witness such trial was known, and the testimony which he had thus given before the grand jury was available to Billings and his attorneys, who were skillful and experienced criminal lawyers. When that trial came on, MacDonald again testified, as he had done before the grand jury, in every substantial detail. He was subjected to a long and rigid cross-examination on the part of defendant’s able counsel, during which his entire story was related without material variation. Some effort was made to show that he was testifying as he did in hope of a reward, but no effort was made during that trial to impair or impeach his evidence either by proof affecting his character or reputation or by contradictory evidence, except that of the defendant himself and of his codefendants. Upon the conclusion of that trial the trial judge gave to the jury a very full and detailed set of instructions covering every phase of the case as developed by the evidence. He instructed the jury that under the law every witness was presumed to speak the truth, but the this presumption may be repelled by the manner in which the witness testified, by the character of such witness and of the testimony offered by him, by his motives or by contradictory evidence, and that a witness found to be willfully false in a material part of his testimony was to be distrusted in other parts thereof. [210 Cal. 707] By the guidance of the foregoing instructions as well as by the other fair and full instructions of the trial judge the jury were called upon to weigh the evidence given by the witness MacDonald. In so doing they gave to MacDonald’s aforesaid testimony full credence and belief, as evinced by their verdict of guilty. In undertaking now and upon this hearing to weigh and determine the truth as to the testimony of MacDonald as given upon the Billings trial, we are bound primarily to submit that evidence to precisely the same tests as the jury upon that trial were instructed to do. In other words, leaving out for the moment MacDonald’s subsequent attempted repudiations of certain vital portions of his former testimony, we are bound in the first instance to apply to such former testimony of MacDonald, as given before the grand jury, upon the Billings trial, and upon each of the subsequent trials of his codefendants, the records in which are before us, the same legal tests which the jury or several juries were directed to apply. In so doing we are bound to declare that MacDonald’s testimony given upon each and every one of said occasions bore every appearance of sincerity, consistency, and truth, that it withstood successfully every assault upon it made during repeated and extended cross-examinations by the most skillful criminal lawyers in the entire country, and that, except for its later attempted repudiations on the part of MacDonald himself, it was and still remains sufficient, with the other evidence offered, to support the finding and conclusion that Warren K. Billings was and was properly found to be guilty of the heinous crime for which he was sentenced to imprisonment for life, and that he is not now entitled to a recommendation that he receive a pardon for such crime.
We thus arrive at the point in the course of this inquiry wherein we are required to consider MacDonald’s subsequent attempts to repudiate certain vital portions of his aforesaid testimony and to determine the effect to be given thereto. Before engaging in this inquiry, however, there are certain later developed circumstances occurring between the time of the taking of MacDonald’s testimony upon the trials of Billings and of his codefendants separately tried and the date of his first affidavit purporting to repudiate his former testimony. After having given his evidence upon these trials during the years 1916 and 1917 MacDonald [210 Cal. 708] remained in California for about two and a half years, following various vocations. During that period he gave no sign of any intent to retract or in any degree modify the evidence which he had thus given. In about 1919 he returned East and lived in several places, working at various pursuits. During that and the following year he wrote and received several letters, some of which appear in the record before us. On February 8, 1920, he wrote a letter to Edward Cunha, stating that he had received a letter from an attorney in Oakland, informing him that he was preparing to put in a claim on behalf of Mrs. Edau and her daughter for a share of whatever reward was to be paid on account of the conviction of Billings and Mooney, and asking if he (MacDonald) would not also retain him to put in a like claim, to which letter he had replied favorably, but hearing nothing further he had written again, but received a letter stating that the lawyer had abandoned the case. So MacDonald was writing to Cunha saying that if any one was entitled to a reward he thought he was entitled to some of it, and asking Cunha to suggest the name of some lawyer who might urge his claim. This letter is entirely friendly in tone and evinces neither any loss or diminution of mental powers, nor any apparent desire to retract any portion of the testimony he had given upon the previous trials. He was advised at that time that no reward was being paid to anyone. On January 11, 1921, he wrote a letter to Duncan Matheson, then captain of detectives of San Francisco, from Trenton, N. J., in a cordial and friendly vein, telling where he was and the sort of work he was doing, and wherein he goes on to say: ‘What is all the fuss about Mooney again? * * * I will say if I was on my death bed and the last words from me would be that he is guilty and that what I swore to was nothing but the truth, and I am willing to take the stand tomorrow and swear to the same things. Do you think Brady will open up the other case against him? If they want me they can get me any time and I will swear to what I swore before, the truth.’ In this letter there is no sign of any waning mental powers nor of the existence of any sense of a troubled conscience, but on the contrary the most positive reassertion of the truth of his former testimony. Nor is there any intimation that in so doing he is further seeking or hoping for a reward. [210 Cal. 709] This letter to Duncan Matheson, as though it were a looking-glass, discloses the MacDonald as of the date upon which it was written to have been a self-respecting hard-working clear-minded man, upon friendly terms with the San Francisco police officials, with no conscientious scruples over the honor and rectitude of his past actions, but on the contrary reiterating and standing ready to repeat his former testimony is required so to do. What, then, shall we say of the John MacDonald of February 7, 1921, the date upon which he swore to the affidavit which he signed in the office of Frank P. Walsh in the city of New York? At the very time when his foregoing letter to Duncan Matheson was being written or was on its way, the folds of a serpent were insidiously enveloping John MacDonald. Edward N. Nockels, secretary and disbursing agent of the Chicago Federation of Labor, who with his organization had, according to his own testimony, become actively interested in the defense of both Billings and Mooney immediately after their conviction, and who had therefore upon several occasions, as testified to by Fremont Older, sent money to California to be expended in an effort to cause certain witnesses for the prosecution in those cases to change their testimony as given upon said trials, learned by means which he describes that John MacDonald was working in Trenton, N. J. Accordingly Nockels went on to New York, taking with him, or being followed by, a trusted confederate of his from Chicago, whose name is given by Nockels as Jack Johnson, but who was known to John MacDonald as Thompson. This man was sent to Trenton upon a mission which was successfully accomplished when John MacDonald was finally induced to go with this agent of Nockels to New York, there to meet with Nockels and the attorneys for the Mooney and Billings defense, with a view to making the affidavit of February 7, 1921. During the weeks which followed the appearance of Johnson or Thompson in Trenton he was in daily communication with Nockels in New York. What arts were used, what methods were employed, what aid from others was given, what temptations were unfolded, what inducements were offered, we have no means of knowing, but we do know the consequence of the cunning conspiracy which was spread about the feet of MacDonald during these weeks, and which finally induced him to journey to New York for [210 Cal. 710] the purpose of putting himself, soul and body, in the hands of those who were seeking a repudiation of his former testimony. Having succeeded, having procured from MacDonald the affidavit of February 7, 1921, MacDonald, according to Nockels’ admission, according to Nockels’ testimony, was paid the sum of five or six hundred dollars in currency and was handed a round-trip ticket to California. Johnson, or Thompson, was handed a similar sum and a similar ticket. How much money altogether MacDonald was at this time or later given outright for making the said affidavit we have no exact means of knowing, but there is evidence before us that MacDonald, after reaching California upon this occasion, displayed a roll of bills approximately $1,500, and at the time of his return East some weeks later had still remaining about $900. On the way to California MacDonald was under the constant espionage of Nockels’ man Johnson (or Thompson). When the pair reached Sacramento, they were joined by two reporters of the San Francisco Bulletin (Mr. Older’s paper), taken by auto to San Joes, installed at the St. James Hotel, where for several weeks they remained, their hotel bills being paid by one of the reporters with the money of his employer, while MacDonald, well dressed and debonair, disported himself among the questionable resports and women of the town. The ostensible purpose of having MacDonald come on to California at this time was that of telling his new-made story before the San Francisco grand jury, but, if such was the real object of his journey, it was never consummated or even seriously attempted to be so; and, after several weeks in disporting himself, always under the watchful eye of his guardian, but with better clothes, more money, and a course of luxurious living such as he had never had in all his life before, MacDonald returned east to his native city, where he has since resided.
We turn from this sordid story to consider the content of the affidavit which MacDonald subscribed on February 7, 1921. It contains approximately sixteen pages of typewritten matter. We do not need to deal with this affidavit in detail further than to say that it consists, as to at least fourteen pages thereof, in a mass of ridiculous and undelievable falsehoods, mainly devoted to charging the police officials [210 Cal. 711] and members of the district attorney’s office of the city of San Francisco with having concocted, and with MacDonald’s reluctant aid carried into execution, a frameup, having for its purpose the conviction of Billings, Mooney, and certain other persons of having conceived and carried into fatal effect the Preparedness Day explosion, upon evidence which they sufficiently knew to be false. Measured by the same legal standards which, as we have seen, was applied by the court and jury to his former testimony, and which we also have rightly applied thereto, this affidavit of John MacDonald fails in every respect to carry conviction as to its truth. The presumption of truth which, under section 1847 of the Code of Civil Procedure, attends the testimony of a witness, was repelled by the application to it of every succeeding provision of that section of the Code. It was contradicted by the terms of his own recent letter to Duncan Matheson. It was discredited by his own self-confessed character as a willful perjurer upon former occasions. It was attended by the gravest distrust because of the manifest willful and admitted falsity of the major portion of the affidavit itself. It was subjected to well-founded, suspicion because of the method of its procurement. Standing alone, this affidavit of John MacDonald, made as aforesaid in 1921, is not entitled to the slightest credence as in any degree overthrowing the testimony which he gave upon the trial of Warren K. Billings in 1916. It is argued to us, however, that we should disregard the evidence of John MacDonald given in 1916 for the reason that he has shown himself to have become a willing, corrupt, and shameless perjurer in 1921 and again in 1930. We know of no such rule to be applied to the testimony of a witness which, as first given, is marked by every appearance of voluntariness, sincerity, and truth, which withstands assault upon cross-examination, and which wins belief from both court and jury to the extent of procuring a verdict of conviction and the denial of a motion for a new trial. If testimony of this character is to be overthrown by a subsequent repudiation thereof by the witness giving it, but which repudiation not only bears upon its face the manifest proofs of falsity, but is subjected to the gravest suspicion of having been procured by methods savoring of subornation of perjury, no verdict or judgment of a court of justice would ever be safe from similar assaults. [210 Cal. 712] Upon our former consideration of this matter we pointed out the essential weaknesses and falsities of the MacDonald affidavit of 1921, and then and therein concluded that his testimony as given in 1916 had not been overthrown. We felt, however, that MacDonald should, if possible, be located and produced before us for questioning. We made some effort to discover his whereabouts, only to find that he apparently had disappeared. Upon our delivery to the Governor of our findings and conclusions upon the matter as then presented before us and upon their subsequent publicity, MacDonald is suddenly and surprisingly located as living in Baltimore and as willing to come to California and testify before this body. Accordingly a new application on behalf of Billings was presented and allowed to be heard under the conditions hereinbefore described. In due time MacDonald appeared, and with him also appeared a new bundle of affidavits and statements made by him, wherein he undertook to reassert the truth of every portion of his affidavit of 1921. With these were also produced certain other statements and affidavits as to the circumstances under which these later declarations on his part were made. It is obvious, however, that, if the affidavit of 1921 was the offspring of corruption and was a document saturated with manifest, willful and now admitted falsifications, his later sworn statements, reasserting the truth thereof, are entitled to no more of credence than that which was to be accorded to his perjuries of 1921. It is therefore the personal appearance of MacDonald before us which constitutes the chiefly significant fact or circumstance arising out of the more recent developments of this remarkable case. In due course John MacDonald appeared as a witness before us. In advance of whatever regard we are to give to his testimony, it may be said that a more abject spectacle of debased and degenerated manhood was never before presented to any body of judicial or quasi judicial investigators. It is needless to describe him to those who saw him, or to attempt to depict him to those who heard him testify. Had the John MacDonald of 1916 been, in outward appearance or manner of testifying, the John MacDonald of 1930, as he appeared before this body, it is inconceivable that any appreciable amount of credence would have been accorded him or his evidence before a court or jury, and it is particularly beyond belief that the court and jury [210 Cal. 713] which were occupied in the trial of this applicant should have been so far impressed with the sincerity, consistency, and truth of his testimony as there given as to have based the conviction of this or any other defendant thereon. The testimony of John MacDonald as given before us upon the instant hearing occupied, with his direct and cross-examination, many days. Without attempting to detail the same, it is sufficient to say that at every point wherein he sought to reiterate the content of his affidavits of 1921 and 1930, or to cast discredit upon his testimony of 1916, or upon the manner of its production, he was abundantly and repeatedly shown to be an unmitigated and shameless perjurer. When confronted, as he frequently was, with his manifest perjuries and with proofs of the truth of his former testimony, he betook himself to such broken utterances as ‘all lies, all lies.’ or covered his face with his handkerchief in a simulation of wretchedness and weeping, during which, however, it was observed that no tears fell. In short, a more hypocritical evasive unbelievable witness could hardly be conceived. Long before his examination and several cross-examinations were completed, practically every portion of the content of his several affidavits contradicting his evidence as given upon the several trials of Billings and his codefendants had been indisputably shown to be false. A sample of the degeneracy and utter disregard for truth on the part of the John MacDonald of today may be furnished by the fact that when a witness before us John MacDonald stated that on Preparedness Day he was sober and that he was so was fully established from the lips of other witnesses who knew him and had seen and talked with him upon that day. Yet, as we are informed, when John MacDonald was brought before the Governor of California a few days later he shamelessly and for the first time stated that he was drunk on Preparedness Day.
To sum this matter up it may be stated as our deliberate conclusion that the effect upon our minds of the production of John MacDonald as a witness before us has been but to reinforce our former conclusion that his attempted repudiation of the testimony which he gave before the court and jury in the Billings and succeeding cases was so abundantly shown to be false, if not, as we believe, corruptly inspired, as to be utterly valueless for that purpose, and hence that [210 Cal. 714] the testimony of John MacDonald as given upon the Billings trial in 1916 and the truth thereof have not been successfully assailed or overthrown, that there can be no question as to the sufficiency of that evidence to justify the conviction of Warren K. Billings for his participation in the crime of the Preparedness Day explosion, and that nothing has been presented before us upon this hearing sufficient to convince our minds that Warren K. Billings is now entitled to a recommendation for pardon at our hands.
JOHN E. RICHARDS, Associate Justice.
Conclusions of Mr. Justice PRESTON.
Synopsis.
The opinion by PRESTON, J., contains some forty-nine pages with an appendix of fifteen pages. It treats the subject as follows:
(1) A statement of the law requiring action of the court in cases like that of petitioner.
(2) A statement of the rule guiding and controlling the decision which in effect is that the burden rests upon the petitioner to prove his innocence and not merely to raise a doubt as to the truth of the charge.
(3) A statement that concededly the petitioner had a full, fair, and just trial by an unprejudiced court and jury.
(4) A history of the previous life of crime led by the petitioner is given, including his previous conviction of carrying dynamite and burglar’s tools to Sacramento, the dynamite being to ‘put Sacramento in darkness.’
(5) A brief history is given of the Red movement in San Francisco, with the stopping of preparedness parades as its object and the connection of Mooney and petitioner with the anarchists and the anarchistic publication known as the Blast. (6) The crime is then described.
(7) Then follows a discussion of the evidence under the following six topics:
1. Was the petition at and around 721 Market street with a heavy tan-colored suit-case upon the day of the crime at about the hours of 1:30 to 1:50 p. m. (this point being some 4,066 feet west of the scene of the explosion)?
[210 Cal. 715] 2. Was the petitioner at or near Steuart and Mission streets on said day without a suitcase just before and at the time of and immediately following the explosion (this point being less than a block from the scene of the explosion)?
3. Was the petitioner seen by the witness MacDonald to place the deadly contraption at the scene of the explosion at a time shortly before 2 p. m. of said day, in company with Tom Mooney or some other person?
4. Is the alibi put forth by the petitioner established?
5. Is it made invincible by the photographs showing Mooney on the Eilers building, at 795 Market street, taken by Wade Hamilton and purporting to show a street clock registering the times of 1:58 p. m., 2:01 p. m. and 2:04 p. m., respectively, on said day and showing certain units of the parade on the march.
6. Did not the defendant practically admit his guilt to Mr. Brennan and others?
(8) The conclusion is that certain agents have illegally tampered with witnesses by the use of money and chicane; and
(9) That petitioner has failed to sustain the burden of showing his innocence but has left an abiding conviction of his guilt.
(10) Recapitulation: The opinion then recounts the previous discussion and concludes: That no discrimination against the laboring or in favor of the capitalist class is involved; that the trial of petitioner was fair; that petitioner is intentionally omitting to apply for a parole in order to promote the circulation of false propaganda concerning this crime; that the petitioner has not been frank with the court; and that no reason exists to justify a pardon.
To His Excellency, C. C. Young, Governor of the State of California:
Warren K. Billings, an inmate of Folsom Prison, convicted in September, 1916, of the crime of murder in the first degree, and serving a life sentence thereunder, petitions the members of this court by this proceeding for a recommendation to you, as the chief executive of the state, for a pardon.
[210 Cal. 716] This proceeding comes before the justices pursuant to article 7, section 1, of the Constitution, which provides in part that: ‘Neither the Governor nor the legislature shall have power to grant pardons, or commutations of sentence, in any case where the convict has been twice convicted of a felony, unless upon the written recommendation of a majority of the judges of the supreme court.’ This provision of the Constitution has been supplemented by section 1418 of the Penal Code, which, as amended in 1929, requires that the application for pardon or commutation of sentence be made directly to the Supreme Court, and further provides: ‘If a majority of the judges recommend that executive clemency be granted, the clerk of the supreme court shall transmit the application, together with all papers and documents filed in the case, to the governor.’ (St. 1929, p. 702.)
We have entertained the application of petitioner in a most serious and painstaking fashion. We are not unmindful of the public interest in the question of his guilt or innocence of the charge of which he stands convicted. By reason of this public interest, we have conducted this proceeding largely as an open public hearing. While we have a vast amount of evidence before us not reviewed at the open hearing, yet in a real sense the record of conviction of petitioner and a large amount of the evidence upon which it was based has been publicly reexamined, and for this purpose we have sat the better part of one month, during which we also visited Folsom Prison.
We realize that the conviction of petitioner and one Thomas J. Mooney, for planting and exploding, on July 22, 1916, a deadly bomb in a patriotic parade, has arrested the attention of people in all parts of the world. We also know that growing out of their conviction has been a widespread propaganda against the efficiency and fairness of our courts, even against the objects and purposes underlying our institutions. More than this, their conviction has been made the basis for fomenting strife between the different classes of our people.
If nothing more has been accomplished by this public hearing, it can now truly be said that all just reason to inveigh against our courts or against the other established ordinances of our government has been removed. By this [210 Cal. 717] statement we allude to the fact that it has abundantly appeared and was frankly and freely conceded on behalf of petitioner himself that he received a fair and impartial trial before a fair and impartial court and jury and was prosecuted by officials who acted fairly and in good faith. If is also impliedly, if not expressly, admitted that the evidence as it appeared at the time of such trial was sufficient to warrant conviction and that the appellate courts were well warranted in approving and sustaining it. It must also be noted that those persons largely responsible for the widespread propaganda to the effect that petitioner and said Mooney had been convicted by illegitimate and oppressive, if not corrupt, means now freely admit that this poisonous doctrine was founded in falsehood and was known to be such when it was put in circulation. Such illegal and illegitimate practices, however, are defended upon the ground that anything short thereof would have failed to focus the attention of the public on the alleged fact that two innocent men, because of class prejudice, had been convicted of a dreadful crime. In other words, this widespread circulation of falsehood is sought to be excused by the familiar doctrine that the end justified the means. How this doctrine was used to justify the illegal and indefensible overreaching if not corrupting of witnesses by some of those persons interested in petitioner’s behalf will be referred to in more detail at another point in this narrative.
From these preliminary observations we may now approach more closely the rules which are to guide us in the consideration of the application presented. What are the principles which should control our action here? Is the petitioner to be clothed with the timehonored presumption of innocence in the face of the concession of a fair and impartial trial upon evidence then conceded sufficient and upon which the petitioner rested for some thirteen years before asking for a pardon? Do we sit de novo as a jury to reweigh the testimony in the light of this presumption? May the petitioner, in whose behalf certain of the state’s material witnesses, after years of espionage, by the use of money and wiles of other kinds, have been induced to recant their testimony, be heard to say: ‘Now that I have reached and snapped the moral fiber of witnesses against me, as a reward for such conduct I demand a pardon’? Suppose that by [210 Cal. 718] such illegal methods and practices the witnesses are so discredited that were the trial to be had anew, the evidence would in insufficient to convict, would that alone entitle the petitioner to a pardon?
My own view is that the petitioner must be required to make a much stronger showing than this. It is not sufficient for him to say, ‘I must be pardoned because by illegal and illegitimate influences I have destroyed the credibility of the witnesses who testified against me’; on the contrary, it is my view that he should be required to establish his innocence, and this may be done either by showing that in truth he did not commit the crime, or by an out and out showing of innocence by proving an alibi, or by identifying the perpetrator. He has chosen to rest his defense upon an alibi, coupled with the contention that the witnesses of the prosecution are unworthy of belief.
Has petitioner met the above test? We are now to examine the record in search of a showing of his innocence. In the examination of this question we are not confined to the limits prescribed by the ordinary rules of evidence; we may look to all the facts and circumstances appearing in the record. We may consider every legitimate fact there found which may properly influence a recommendation upon an application of this type. We begin with a short notice of petitioner’s history prior to his present conviction.
This history, taken largely from his own lips, is substantially as follows:
We first meet him in latter part of the year 1911, a young man of the age of about 17 years, arrested in Brooklyn, N.Y., for the unlawful possession of burglars’ tools, sentenced to six months’ imprisonment and put on probation. In May, 1912, he began a trip across the continent as a vagrant and finally landed in San Francisco on or about March 6, 1913, having been arrested in Salt Lake City as an army deserter suspect and released. He followed no honorable employment during this period. He admits acting as a ‘powder monkey’ in connection with dynamite blasting in Strawberry Valley, Utah. He also admits more or less skill and knowledge in the use of dynamite.
Upon reaching San Francisco, he sought out Mooney and one Hooper, and was by them employed to act as a spy by engaging himself as a nonunion sympathizer in the plant [210 Cal. 719] of Heiman Shoe Factory. The terms of his employment required him to report to his employers at Mooney’s residence on Fifteenth street twice weekly. Having had some training as a shoe cutter, he sought and obtained employment by this concern. He was transported to and from work under guard by his employer and would seek opportune periods at odd hours to make his reports. Some three hundred pairs of shoes were cut and destroyed during the few weeks of his employment at this place. Fearing that he had been suspected of the crime and would be discharged on account thereof, he quit his employment and in an altercation or scrimmage with a guard working for his employer, he discharged a revolver, the ball from which struck his own left thumb. For this episode he was arrested for assault to kill and prosecuted, but later discharged.
He admits himself to have been at this time what is termed a ‘labor spy.’ Following the above-mentioned employment, he continued his association with Mooney and visited his home frequently. In July and August, 1913, he was given temporary employment under the name of Gregory R. Smith, by the firm of Buckingham&Hecht, shoe manufacturers, but was able to get only part-time work there. At this time there was in progress an employees’ strike against the Pacific Gas&Electric Company. Mooney for some reason or other was active in behalf of the strikers, and he again employed petitioner to do certain spy work in connection with this strike. For some ten days petitioner visited and inspected a power line from the Visitacion power house to Redwood City for the purpose of ascertaining and reporting to Mooney and his associates the number of guards on duty and how many of them were patrolling the line. For a similar purpose he also ‘traced down’ a power line from a point near Berkeley for a distance of six or eight miles. He spied on a power plant on Bryant street, San Francisco. He also robbed a quarry of some dynamite and sold it for $5 for use in this strike. Admittedly he knew the purpose of securing this information and doing this additional work was to further a plot to destroy power lines of the Pacific Gas&Electric Company.
On September 13, 1913, as an aid to said Pacific Gas&Electric strike, he was employed, presumably on the suggestion of Mooney, to carry by hand to Sacramento a suitcase [210 Cal. 720] containing sixty sticks of dynamite and four rolls of fuse, which he did. He also carried in his pocket some detonating caps, a loaded revolver, and a set of burglars’ tools. He was to receive some $25 for this work. Although admitting that he knew he was doing something illegal, he denies that he knew the suitcase contained explosives, but no credence can be placed in this denial, as he was warned about the danger of the caps and knew his employment was in furtherance of a plan to ‘blow down power towers and put Sacramento in darkness.’ He admits that his then state of mind was ‘to live in the easiest way and make the most money the easiest.’ Referring to the burglars’ tools, he said, ‘I had the tools but didn’t use them.’ This is evidence because he was arrested on the spot with the suitcase, was prosecuted and convicted, being sentenced in December, 1913 to two years’ imprisonment in Folsom Penitentiary, from which institution he was paroled in the month of December, 1914. It is because of this conviction that he must have the favorable recommendation of a majority of the members of this court to secure a pardon.
Referring again to the set of burglars’ tools, they were found on this occasion to consist of a flash light, jimmy, or chisel, some skeleton keys, and a revolver. Petitioner stated, in substance, in this connection: ‘Well, the State Fair was on in Sacramento and I thought I might find a few houses with nobody home.’ Further questioned on this subject, he said:
‘Q. How long had you been carrying the pistol?
A. I think it was the same one I had in the shoe strike.
‘Q. What is the state of mind of anyone about to commit burglary? Were you ready to do anyone harm?
A. No, I don’t think so.
‘Q. What would happen if some one interfered with you while you were on a robbery?
A. I suppose I would submit to arrest. I don’t think I would have hurt anyone with my gun. The gun was more of a bluff.
‘Q. How would you protect yourself?
A. I would run probably.
‘Q. Now, Billings, tell us, honor bright, if you have ever committed any burglaries?
A. Well, not burglaries exactly, but I broke into a railroad box car once in 1913. But only once.
‘Q. Did you even have any other burglar tools?
A. No, the only other instrument I ever had resembling a burglar tool was a small steel box opener that I found on the streets of Sacramento in 1916.’
[210 Cal. 721] If may here be noted that in connection with the same Pacific Gas&Electric strike, Mooney and two others were arrested at Martinez at about the same time for having in their possession dynamit, percussion caps, batteries, an alarm clock, and firearms.
After his parole from Folsom, in December, 1914, petitioner came to San Francisco and remained until Labor Day in 1915, working for a naval tailor, asserted to be an anarchist, and later working in the assembling plant of the Ford Motor Company and keeping up his acquaintance with Mooney, who had manifested considerable interest in him when he was in prison. His parole expired in August, 1915, and he thereafter went to Denver. What he did during this period is not clear. We find him, however, traveling as a vagrant and returning to Sacramento in February or March of 1916, where he was arrested and suspected of burglary as he had a chisel or jimmy in his possession while prowling around in the night-time; upon this occasion he was given a six months’ suspended sentence. He returned again to San Francisco in March, 1916. About this time he went again to live in the lodging house of Belle Lavine, a rendezvous for anarchists. He met the anarchist Alexander Berkman, who, in connection with Mr. and Mrs. Mooney, E. B. Morton, E. D. Nolan, and perhaps others, had recently founded the ultraradical publication known as the Blast, which said publication had for its object the promotion of industrial strikes and particularly the prevention of all efforts in behalf of preparedness for war by the United States. Petitioner again connected himself with the Mooneys, Nolan, and other radicals or ‘Reds’ in this city. He visited the Mooneys frequently at their home on Fifteenth street and later at the Eilers building, 975 Market street. When asked what he did of a shady character in 1916, he answered, ‘My employment as a labor spy and sabotage agent.’
Coming to the month of June and the first three days of July, 1916, and prior to the bomb explosion, we find him admittedly betraying his employer, the Cadillac Auto Company, by spying upon the operations of the company, and reporting them to Nolan and others in connection with an automobile mechanics’ and machinists’ strike then in [210 Cal. 722] progress also. He collected $3 a day from his employer and $2 a day from the Machinists’ Union. From July 3 to 13 we find him with Belle Lavine, his landlady, and some man, upon the Russian river. At this time Tom and Rena Mooney were faverishly working day and night to promote a strike among the platform men of the United Railroad Company. On June 11, 1916, three towers in the hills about ten miles south of San Francisco, supplying power to the United Railroad, were partially destroyed by dynamite, and in this connection a mechanism claimed to have been used to set off the dynamite was found nearby, consisting of an alarm clock fastence to a board and connected by wire with a dry-cell battery. A similar device was used in the explosion here under consideration.
On July 6, 1616, Mooney issued a call for carmen’s meetings in his wife’s studio for Sunday, July 9, one at 3 p. m., and one at 8 p. m., and he also issued a circular calling for a strike on July 14, 1916; he also wired petitioner at Monte Rio to return and help him with the strike. Petitioner thereupon returned and was engaged by Mooney to tie up the street car traffic of the city by stopping or ‘freezing’ a municipal car on the tract on Market near Geary and Kearny streets. Petitioner, with eight or nine men nearby as guards to protect him, pulled the emergency cord, which stopped the car and tied up the traffic, thus preventing the operation of some twenty-five to thirty cars of the system. In this connection, the following extract in substance from his own statement is pertinent:
‘Q. What was working in your soul when you were doing that?
A. Trying to help Tom Mooney, I guess; sympathizing for the employees.
‘Q. Do you think it was safe for man with your ideas at that time to be at large?
A. With my ideas at that time, no sir.’
When asked as to his movements between July 14 and the Preparedness Day parade, that is, during the eight days next preceding the parade, he stated, in substance:
‘I was in the auto strike, the machinists’ strike. * * *
‘Q. Was that employment more obious than the others?
A. More odious, yes, sir; acts of vandalism.
‘Q. Doesn’t it strike you as pathetic that a man of your talent should have debased himself so?
A. I have a very small opinion of my capacity, sir.
‘Q. Don’t you look back on yourself with pity?
A. Not [210 Cal. 723] with pity, no sir; with disgust. * * *
‘Q. Have you any compunction now?
A. I have.
‘Q. How can we know that?
A. In any way I can prove.
‘Q. Then try being not so reserved.
A. I am trying not to be reserved.’
When asked as to what his employment was after the attempted street car strike, he said:
‘I was unemployed for a while, until July 21, or 22. Then I was employed by the machinists’ union in sabotage.
Q. Was that your idea?
A. Nolan’s and mine; I guess mine.’
In this connection petitioner admits that he and Nolan, for the purpose of aiding the strike, engaged in the scheme of throwing acid upon certain types of automobiles, the idea being that, by the destruction of the paint upon the machines, now painting jobs would be thereby created, which would force the employers to make terms with the strikers in order to take care of the incoming new work. Petitioner freely admits that he was better off in prison than at large during this period of time. He characterizes himself in these words, ‘I was merely a hired mercenary, if you want to put it in such terrible terms.’ From this brief recital it may also be seen that petitioner was almost completely under the domination of Thomas Mooney. If further evidence of this almost paternal relation of Mooney and Rena Mooney to petitioner be desired, it may be found in Mooney’s efforts to get petitioner paroled from prison as disclosed by his correspondence with petitioner and others. From the first-mentioned correspondence, we quote the following: ‘I would like to get up to see you, but the times are so bad and money so scarce that it is impossible to make it at this time. * * * Let us know at once for sure if your application will go in on the November calendar. Rena sends her love to you, Mother sends her blessings to you and all the rest of us * * * all send love and best wishes with the kindest for you.’
The tenor of petitioner’s testimony was to the effect that practically any request by Mooney involving the perpetration of crime would have been freely carried out without compunction by petitioner. He further admits that his only associates were anarchists and gamblers.
Background of Crime .
With this history of petitioner, we are now to consider the background of the present crime of which he at ands convicted.
[210 Cal. 724] At this period the European War had been in progress almost two years. More and more it was becoming evident that out country might soon be forced to take up arms in its own defense and in the cause of liberty. The President of the United States, although striving earnestly to remain neutral, had evidently feared of his success and had in a public pronouncement warned the country to prepare for the eventuality of war. Patriotlc organizations in all parts of the Union began immediately to take up the wourk of preparedness and parades were held in various cities. This stirred the Red element in the country to renewed activity. This was especially pecially true inasmuch as organized labor throughout the country stood shoulder to shoulder with the other citizens and was sharing the view that we could no longer maintain a neutral status.
Accordingly, in the fall of 1915, Alexander Berkman, an odious anarchist, came to the Pacific Coast for the purpose of establishing a revolutionary journal. He first surveyed the field at Los Angeles, but abandoned that place as a location and came to San Francisco, largely through the influence of Thos. J. Mooney. Here, in January, 1915, with the aid of E. B. Morton, E. D. Nolan, Thos. J. Mooney, and Rena Mooney and M. E. Fitzgerald, he established a revolutionary publication known as the Blast. Its staff consisted of Alexander Berkman, editor and publisher; E. B. Morton, associate editor; M. E. Fitzgerald, manager. Thos. J. Mooney had, a short time previously, made an unsuccessful effort to gain circulation for a similar publication called the Revolt. Mooney and his wife, therefore, became active in support of this new publication, particularly in soliciting subscribers and securing financial aid for it. The evidence shows that Mooney himself secured more than fifty subscribers and contributed at least one article to the magazine on the subject of prepareness. This paper immediately took up the cause of the McNamara brothers, Caplan and Schmidt, persons who had been convicted of or were to be tried for dynamite outages and also the causes of all the I. W. W.’s and others charged with industrial crimes. In founding the paper, Berkman announced his purpose to be as follows: ‘i hold that one of the most important things is the publication of a revolutionary weekly to keep the rebels thought the world in [210 Cal. 725] closer touch with each other and informed of the labor and revolutionary situation in the different countries. * * * The other departments of The Blast will be a strong anti-militarism and anti-preparedness column * * * a chaingang department containing news from labor’s prisoners of war-— on trial and in prison, stories of prison life, etc.’
In the issue of January 15, 1916, referring to the question of the guilt or innocence of Schmidt, it is said: ‘As to the l-e-g-a-l guilt of Mathew A. Schmidt, The Blast considers it of no consequence, except as it affects Schmidt individually, his family and his friends.’
Another slogan, announced in the issue of January 29, was: ‘Violence is a natural form of protest against injustice.’
On page four of the issue of February 12, the following article appeared: ‘Prepare! Prepare! You, rebel workers, radicals and revolutionists of whatever persuasion— wake up before it is too late! Do you want this country to become a military camp like Prussia or an armed barracks like Russia? That is just what will happen if you continue to sit idly by while mad Jingoes and munitions manufacturers frighten the popular mind with the fear of imaginary external enemies and inflame it with murderous patriotism. Prepare, workers, rebels, revolutionists, to be treated in times of peace as your rebel brothers are treated in Russia. Remember Black Friday— and the Ludlow massacre. It is not such a far cry from Colorado, Michigan, Paterson and Lawrence to Moscow and Petrograd. Are you going to permit militarism to get the upper hand in this country?’
In the same issue is found an editorial entitled ‘Direct Action vs. Respectability,’ in which is criticized the attitude of the American Federation of Labor and which concludes with these words: ‘The workers have no more insidious enemy than the chicken-hearted labor leader who advises them to be patient and respectable. An ounce of direct action is worth more than tons of paid advice of labor politicians.’
In the issue of February 19 appears an editorial as follows: ‘As for me, I recognize neither flag nor country. I know only one invader: the government which robs me of liberty and forces me to do things against my will. I have but one enemy: the master who steals the fruit of my toil. [210 Cal. 726] I have nothing to defend in this or any other country. I have only my own interests to defend— the interests of my oppressed fellow men throughout the world. I will not defend rulers or masters in any country. I will shoot the first recruiting officer rather than harm my brother proletarian, wherever he may come from.’
In the issue of February 26, an article under the head of ‘Patriotism’ concludes with these words: ‘Awakened at last we refuse further obeisance to the American fetish— a striped rag!’ A later article, in the issue of July 1, referring to the American emblem, and entitled ‘The Sacred Rag,’ concludes with these words: ‘No decent man or woman can respect the symbol of such tyranny.’
In the issue of March 4 there appears an article under the head of ‘The Wailing of Wilson&Co.,’ wherein it is said: ‘The President should be given credit, however, for having been frank enough to tell the truth as to why he wants a citizen army of four hundred thousand men. It is not because of the fear of invasion by a foreign foe bent on destroying the glorious liberties of America. It is to protect the business men’s interests, and Mr. Wilson says so. For that reason he calls upon the employers to make it desirable for their employees to join this citizen army. This is an admission that should accrue to Wilson many congratulations from those in whose defense he pleads.’ The article concludes with these words: ‘It would seem that the most effective way to end any objectionable war and at the same time put fear in the hearts of the tyrants on high is to follow the advice of the clever critic who recently said, ‘Shoot the officers and go on home.’ It’s worth trying, anyway.’
The same issue contains the following editorial entitled ‘Inviting Violence’: ‘The federal government has suppressed the Alarm of Chicago, and the Revolt of New York. We are not going to say that it is an outrage. Why should the government not commit outrages? Invasion of personal liberty, suppression of free speech and free press, silencing nonconformists and protestants, shooting down rebellious workers— all this is of the very essence of government. We don’t complain. We understand Wilson’s position. He must do his master’s bidding. This is the ‘sane policy.’ But we want to warn the weathercock in the White House [210 Cal. 727] that it may not prove safe . Suppression of the voice of discontent leads to assassination. Vide Russia.’
The issue of April 1 contains a defamatory article against preparedness by Thos. J. Mooney, entitled ‘Will Organized Labor Help?’ the first paragraph of which reads as follows: ‘A new institution has sprung into activity. Its purpose is primarily the making of profits out of the war game, out of the wholesale slaughter of the workers by the workers, with the instruments of their own creation. But in order to have this war game carried out to the success of those who benefit from it, the opposing sides in the game must be somewhat equally matched, for duration, because the longer the game goes on the more profits the Steel Trust, the Standard Oil Company, the DuPont Powder Company and the rest of their ilk, make out of the spilling of the workers’ blood.’ Said article concludes with these words: ‘This move of the League to trap the workers must be pushed back in the teeth of the Labor crushers.’
In this issue was also advertised the ‘David Caplan Mass. Meeting’ for April 4, with Berkman, Nolan, Morton, and others advertised as speakers, Mooney signing himself as secretary of the International Workers’ Defense League.
From an article in the issue of May 1, entitled ‘To Hell With the Government,’ we quote the following: ‘Three successive issues of The Blast have been vetoed by the Post Office Censorship. The determination of the Washington authorities to suppress this publication is obvious. But the high muck-amucks of the government are too cowardly and hypocritical to inform us to that effect, honestly and frankly. That would not befit a ‘proud government.’ By the way, who was it that said that a government always represents the lowest social level? Evidently he knew. The methods used by the Federal Government, the chambermaid of the money paunches, to suppress The Blast are beneath contempt.’ Just before a poem of two stanzas which concludes the article is the following: ‘And let the overlords and their hirelings be warned that their craven and sneaky methods of stifling unpopular thought will but serve to drive our propaganda underground, sub rosa— as in Russia, for instance— and force it to assume more aggressive expression. In vain is the hope of the American governmental Black Hundred to suppress the Spirit of Revolt. In vain! For (poem). * * *’
[210 Cal. 728] From an editorial in the issue of June 1 we quote the following: ‘It is therefore urgent upon the workers and all others opposed to militarism not only to boycott and remain away from the preparedness parades, but to more positively and assressively crystallize and demonstrate their opposition to organized murder. Great anti-preparedness demonstrations are therefore of immediate necessity. That alone, however, will not do. At best such demonstrations, like all similar massings of people, are very negative in character; passive, I almost said. Something more positive, more active is needed.’ (Emphasis ours.)
In said issue another editorial, referring to the existing longshoremen’s strike in San Francisco and acts of sabotage committed in connection therewith, says: ‘The striking longshoremen of San Francisco seem to have chosen effective methods to bring the shipowners to their senses. The million dollar fire on the water front is a good beginning. Repeated visitations of the ‘red cock’ will impress the masters with the novel idea that the strikers are ‘on the job’ if they have quit work.’
The issue of July 1 contains the following notice: ‘International Picnic of ‘The Blast,’ Tuesday, July 4, 1916, beginning at 10 a. m.— Address by Alexander Berkman— Millet’s Park, Colma— Tickets, 25c. * * *’ Monney attended this picnic.
The issue of July 15, the one next prior to the day of the explosion, was devoted almost entirely to defamatory tirades against preparedness. On the outside cover page is a cartoon showing a cannon trained upon a column of workingmen with the inscription ‘The real purpose of Preparedness.’ On page 2 a general strike is called in an article by Alexander Berkman, which contains the following language: ‘The ruling banditti know that primarily it is the revolutionary elements that oppose their schemes of Preparedness and War. Therefore their first step is the summary and wholesale suppression of the opposition papers. Within a few weeks the Postal arm of Preparedness seized the following publications, depriving them of the second class mail or declaring them entirely unmailable: The Blast; the ‘Revolt’ of New York; the ‘Alarm’ of Chicago; ‘Regeneracion’ of Los Angeles; ‘Voluntad’ (Spanish) of New York; ‘L’Allarme’ (Italian) of Chicago, and ‘Volne Listy’ [210 Cal. 729] (Bohemian) of New York.’ It concludes as follows: ‘The time has come for a GENERAL STRIKE. This, this alone holds out victory for Labor. A general, nation-wide strike, at one stroke paralyzing every wheel of industry, demonstrating the power and fundamentality of Labor. Come, workers of every craft and industry, producers of all the wealth of the world, organized or unorganized, let us take counsel together. The revolutionists of every shade stand ready to help you. Come, let us talk it over. Let us invite our fellow workers of Mexico and of South America (Europe is busy) and let us talk matters over in a PanAmerican Labor Conference. Let us talk over the fundamental demand of ALL Labor and of all fair-minded men and women throught the world: LAND AND LIBERTY. Never fear, we shall find ways and means of accomplishing our aim, once we get together on the common basis of THE EARTH AND ITS PRODUCTS TO THE PRODUCERS.’
In this issue also is found a schedule of speeches to be delivered in San Francisco by Emma Goldman, the one for Thursday night, July 20, being entitled ‘Preparedness, the Road to Universal Slaughter.’ Said issue also contains an advertisement for an Anti-Preparedness Mass. Meeting at Dreamland Rink in said city. Petitioner attended this meeting in company with Belle Lavine and E. D. Nolan. There Wm. McDevitt repeated the slogan: Fremont Older was also present, home.’ Fremont Older was also present, and it was because of the feeling engendered there that he feared that the contemplated Preparedness Day parade would be bombed. He testifies that he left the meeting, and on July 22, the afternoon of said parade, sat in his office awaiting news of the feared out rage. It was he too who, upon hearing of the explosion, pointed the finger of accusation at Thos. J. Mooney and his confederates. This suspicion against both Mooney and petitioner, counsel for petitioner admits, was ‘one hundred per cent.’ justified. As has already been noted, on July 22, the day of the crime, Alexander Berkman and Emma Goldman and other anarchists were in the office of The Blast. On July 21, the preceding day, Mooney was busily engaged in writing an address to be delivered that evening to some meeting of workingmen, and at this period, as above noted, his relationship with petitioner was so close as to create the impression that petitioner was in the employ of himself and his wife.
[210 Cal. 730] It should be noted that Mooney’s radical career dates back as far as 1908 for, in attempting in 1913 to organize a revolution under the title of International Foundry Workers Educational League, he stated the highlights of his past career as follows: ‘Thos. J. Mooney, 1645 15 St. San Francisco, Cal. Sec’y. International Foundry Workers Educational League. Also member of the International Moulders Union of North America, Local 164, San Francisco, Cal. and the Socialist Party of this City, Run on the Party (Socialist) ticket for Superior Judge in 1910, and for Sheriff in 1911. A member of the Socialist Party for the past five years. Toured the Country with E. V. Debs in 1908 on the RED SPECIAL selling over $1,000 worth of literature for the Party without any compensation for two (2) months. I won the second prize (Trip to International Socialist Congress Copenhagen, Denmark 1910) in the Wilshire ‘’Round the World’ Contest for securing the largest number of subscribers to Wilshires magazine. The first (1) prize going to a professional Socialist Lecturer (Geo. Gobel N. Jersey) who had many advantages over me. T. J. M.’
In 1913 and to and including the first half of 1916 he was also participating in existing strikes and in promoting other strikes, and during the larger part of this period he was managing, as secretary and treasurer, an organization known as the International Workers’ Defense League, which had for its object the defense of all those persons under prosecution or conviction for crimes commonly called direct action crimes, such as dynamiting and other direct sabotage action, together with the defense of any persons under prosecution or conviction for murder and other crimes following such practices. We have already seen that the question of the guilt or innocence of a man under such charges was an entirely immaterial factor. In this connection it should be noted that one Ford and one Suhr were at this time in prison under life sentences for the murder of District Attorney Manwell of Yolo county. The attitude of Mooney towards organized government may be illustrated by his action toward the government, which had recently theretofore denied a pardon to these two offenders. Part of Mooney’s language in this connection was as follows: [210 Cal. 731] ‘There are some workers at least, Governor Johnson, who will not accept as final your decision on the Ford and Suhr case, and from now on they will attempt to use the only kind of reasoning that will eventually reach you, and we hope it will be indulged in until Ford and Suhr are out of prison. And so, if violence is committed, Governor Johnson is responsible for it, as he has closed the last legal or governmental avenue of action. The workers must acr, and they will act until Ford and Suhr walk forth free men vindicated to the labor world as their champions in the greatest cause in history.’ The headquarters of this last-mentioned league were located at 3345 Seventeenth street, which place was known as the I. W. W. hall, the telephone for which was obtained on the application of ‘Tom Mooney, per Mrs. Rena Mooney.’ The telephone was discontinued on July 19, 1916.
Description of Crime .
With this environment in mind, a brief description of the crime itself will be given. The following is taken from the opinion of the District Court of Appeal (People v. Billings, 34 Cal.App. 549, 560, 168 P. 396, 401): ‘The prosecution introduced evidence showing that a high explosive concealed in a suit case was, on the occasion of the preparedness parade in San Francisco, placed against a building at the southwest corner of Steuart and Market streets, about 20 feet from the corner of Market. The junction of Market and Steuart streets is near the ferry building at the foot of Market street. On Steuart street and other similar connecting streets at the lower end of Market street the units of the parade were to form and enter the parade which was programed to proceed out Market street. Such a unit of the parade was standing on Steuart street. The sidewalks were crowded with innocent spectators. This infernal machine was so constructed that by a clockwork device it would explode at a given time. The time when this explosion actually took place was six minutes after 2 p. m. The force of the explosion was terrific. Men were blown from their horses and people ‘fell to the ground like matches.’ Nine or ten people lost their lives. Nearly fifty others were mutilated and mangled. The devilish ingenuity which constructed this infernal machine did not rest content with placing in it the explosive alone. It was filled with pistol cartridges, with pieces of iron pipe, and with [210 Cal. 732] steel balls like unto the ball bearings of automobiles. From the debris of the explosion and from the bodies of the dead and wounded many of these articles were discovered and introduced in evidence. So also were introduced in evidence bits of brown papier-mache from which cheap suit cases are made, and, in the language of appellant’s counsel, ‘some clasps or locks or other things affecting the suit case.’ That this destruction of life and property was criminally caused by the criminal means indicated, the evidence leaves in not the slightest doubt.’
We have examined the fragments picked up at the scene of the explosion. They fully confirm the statement above set forth as to the nature and contents of the bomb. The finger of suspicion was pointed at Mooney and at petitioner as his puppet. Petitioner was later apprehended and soon thereafter his room in the lodging house of said Belle Lavine was searched. There was found therein a can containing a large number of loaded cartridges, .22 and .32 caliber, about 10 automobile bearings, and a loaded revolver. Petitioner admitted that this can was his property, but could not recall where he bought the bullets, but he stated that he ‘used them when he thought necessary.’
We are now in a position to consider the evidence in more or less detail. We have under arrest a man fully capable of the offense connected with a man fully capable of plotting and directing its commission. We have the anarchists Berkman and Goldman and others hovering near. We have a crime committed of such a nature that the perpetrator thereof need not be present at the moment of its consummation. It leaves no telltale imprint upon the person of the criminal. It permits of an opportunity to concoct an alibi. It must, however, be admitted also that an alibi is practically the only defense available to one wrongfully accused; yet the claimed alibi of one who by proof and his own admission is fully capable of the crime and who is living in the atmosphere that incited it, needs must be most carefully scrutinized. The evidence, therefore, puts in issue the following material propositions:
(1) Was the petitioner at and around 721 Market street with a heavy tan-colored suitcase upon the day of the crime at about the hours of 1:30 to 1:50 p. m. (this point being some 4,066 feet west of the scene of the explosion)?
[210 Cal. 733] (2) Was the petitioner at or near Steuart and Mission streets on said day without a suitcase just before and at the time of and immediately following the explosion (this point being less than a block from the scene of the explosion)?
(3) Was the petitioner seen by the witness MacDonald to place the deadly contraption at the scene of the explosion at a time shortly before 2 p. m. of said day, in company with Tom Mooney or some other person?
(4) Is the alibi put forth by the petitioner established?
(5) Is it made invincible by the photographs showing Mooney on the Eilers building, at 975 Howard street, taken by Wade Hamilton and purporting to show a street clock registering the times of 1:58 p. m., 2:01 p. m. and 2:04 p. m., respectively, on said day and showing certain units of the parade on the march?
(6) Did not the defendant practically admit his guilt to Mr. Brennan and others?
We shall discuss these questions in the order named.
Question No. 1.
The court and jury believed and I believe that the petitioner, with a heavy suitcase, was at this point, 721 Market street, on said day at about the time claimed. 721 Market street was a low building of two stories, situated between two higher buildings, between Third and Fourth streets, and on the day in question the top floor was occupied by two advertising dentists, by whom the witness Estelle Smith was employed as attendant. Petitioner was recognized by her at said place and also by Herbert Wade, a Honolulu school teacher, and by Peter Vidovich, a retired broker, both patients of said dentists; also by Louis Rominger, who lived at said address, and by Earle C. Moore, a police officer, all of whom gave strong, connected, logical, and convincing testimony as to the identity of said petitioner.
The witness Herbert A. Wade, a principal of a school in Hawaii and a teacher of some twenty-two years’ standing, testified that on the day in question about 1 p. m., either shortly before or after the hour, he was in the vicinity of 721 Market street for the purpose of having his teeth attended to at said dental parlors; that he saw petitioner, wearing a dark gray suit and hat, and carrying a suitcase of a dark reddish color, so heavy that it made him stoop, run up the stairs at said address. He stated that he had [210 Cal. 734] special occasion to look at petitioner because he had intended having his dental work done before the parade started, and, when petitioner preceded him, he thought that a man occupying the dental chair before he did might prevent this; that he did not follow petitioner up the stairs, but stood looking in the showcase, hesitating whether it would be worth while to go up under the circumstances; that as he was leaving another man and woman passed him, going up.
Peter Vidovich, a retired broker from Fairbanks, Alaska, testified that he went to the said dental office on the day in question; that as he was leaving he saw a gentleman coming up the narrow stairway with a suitcase in his hand; that knowing there was not room to pass on the stairs, he waited and the man whom he thinks was Billings ascended into his presence. Upon cross-examination he stated that the time of the meeting was between five, ten, or fifteen minutes after 12; that the hallway was a little dark; that the man was dressed in a suit of a light-dark pale color with fine rather dark stripes, wore a sand color felt hat and carried a big suitcase; that Billings looked to him like the man.
Earle R. Moore, a traffic officer of San Francisco, testified that on said day after quarter to one he was detailed on the south side of Market street between Third and Fourth streets; that he first met petitioner practically in front of 721 Market street; that his orders were to clear the street of all traffic before the parade; that there was one Ford car, the owner of which he could not locate; that he blew the horn several times; that finally the party whom he later identified as petitioner walked out to the sidewalk; that he asked petitioner if he was driver of the car and petitioner answered ‘No’; that he said, ‘Who is the driver of the car?’; that petitioner looked around and said, ‘I don’t know; he will be here in a minute’; that he (the witness) then went down toward Fourth street and when he returned in about five or ten minutes the machine was gone. He testified further that the man looked 5 feet 7 or 8, a small, spare man; that he had on a light suit, light brown as he remembered, it, or perhaps gray; that he had no suitcase, but was standing with his hands in his pockets; that the conversation just related took place about twenty minutes [210 Cal. 735] or quarter to 2; that the crowd at that spot at that time was not very thick, but was thick further down. Mr. Brennan stated to the witness:
‘I have a picture taken at twenty minutes to two with Mr. Moore in it. Is that you,
Mr. Moore?
A. Yes, sir, I think so; I am not positive so.
‘Mr. McNutt:
Q. There was no police officer on the south side of Market street between Third and Fourth that day, was there?
A. No, not to my knowledge.
‘Q. That was ten minutes to two?
A. About eight minutes to two.
‘Mr. McNutt: You don’t make any contention that Mr. Sorensen’s clock is not right, do you?
‘Mr. Brennan: I don’t know anything about it. I read an article about the two clocks at one time.
‘Mr. McNutt: Yes, I offer it in evidence, if the court please.
‘The Witness: You want me to introduce something at ten minutes to two there I was around here, an automobile there, that was after I went down and got this car in front of the Bulletin office and came back there. There was not much of a crowd through there then, right there.
‘Mr. McNutt: We offer in evidence * * * this picture showing the police officer Moore at the post in front of 721 Market street, with the Sorensen clock at approximately 9 minutes to two (picture marked Defendant’s Exhibit 2). * * *
‘Q. And you recognize Mayor Rolph in the picture, don’t you, in the middle of Market street?
A. Yes, sir, but when I was talking to Billings, the parade was coming west, down Market street, I should judge below Montgomery. * * *
‘Mr. Brennan:
Q. You don’t know, of course, the exact time, do you?
A. No, sir, I do not.
‘Q. You are approximating the time?
A. I am approximating it. * * *
‘Mr. McNutt:
Q. The only thing you could not be mistaken about is Billings?
A. Positive; it would have to be proven to me it is not him before I would change my mind.’
The Ford car above mentioned was later identified as that of Weinberg, a jitney man who frequently escorted Mr. and Mrs. Mooney about the city.
Louis Rominger testified that on the afternoon of said day he first saw petitioner in the reception room of the dentist’s office at 721 Market street; that petitioner had with him a dark suitcase; that Mrs. Smith said, ‘Louis, show this man to the roof; he is a photographer and wants to take pictures,’ and that he thereupon assisted petitioner [210 Cal. 736] to climb up on the roof, that is, he boosted petitioner up and then handed him the suitcase, which weighed about 30 pounds; that he said to petitioner, ‘It is very heavy,’ and petitioner answered, ‘Not very much.’ Said witness further testified that petitioner had no tripod nor did he have a photographer’s outfit with him. He further stated that he next saw petitioner on the sidewalk, talking to a lady and gentleman, and the last he saw of him he was going towards the ferry; that he was positive that petitioner was the man he assisted with the suitcase on said date. Upon cross-examination, the witness repeated that the suitcase was a dark color and that he could not say how petitioner was dressed. Upon redirect examination he testified that petitioner stayed on the roof, he judged, not more than half an hour; that the parade had not yet passed when he left the building; that he noticed a small scar on petitioner’s head and that his thumb had evidently been mashed, which latter observation he made when petitioner raised the suitcase up to him.
Mrs. Estelle Smith testified that she lived at and was janitress of the building, doctor’s assistant, and bookkeeper, at 721 Market street; that she was in the office of Drs. Strub and Shane all day long on the occasion of the parade and never left it; that she saw petitioner on that day; that from the reception room she first saw him at the head of the stairs, leaning over the bannister looking down; that she asked him if he wished to see the dentist and he said he would like permission to go on the roof to take pictures; that he was from the Chronicle; that she said, ‘Why not take pictures from the Chronicle roof?’ and he answered, ‘It is too high; I want a picture of the parade going this way; * * *’ that she told him he could wait, but she could not give him that permission and the doctor was out; that he picked up his suitcase and came in the reception room and sat down; that a little later she noticed him walking up and down in the reception room and asked him what the matter was; that he said, ‘I think the heat has made me sick’; that he took out his handkerchief to wipe his face. She then further testified:
‘He was sick; looked like the perspiration was all over him, and I fetched a towel and wiped the gentleman’s face off. I gave him a glass of water. I [210 Cal. 737] said, ‘Well, I wish the Doctor would come; I would let you go on the roof.’ I opened the laboratory door and suggested to the mechanical man that he would keep the gentleman’s suitcase for him. I suggested to the gentleman that he would go out: I said, ‘It is at least a half hour before that parade’; I said, ‘you go out and maybe you will feel better after you take a walk, and I will keep the suitcase for you’; I went over to pick up the suitcase, ‘My God! Don’t touch that; ’ I jumped and said, ‘My God; you scared me’; he said, ‘You will strain the lens in my camera.’
‘Q. What occurred then?
A. I called a friend of mine in the front room and said, ‘Louis, show this gentleman to the roof.’ ‘If you are sick, if the Doctor comes, if he don’t want you there, I will send up for you, and it will be all right to come down, but I am sure the Doctor won’t object.’
‘Q. Now, what did Billings do then?
A. He got up and went with Mr. Rominger to the roof.’
She further testified that Mr. Rominger took Billings down the hall; that she did not see him again until she met him coming off the roof when she said: ‘What is the matter with you? Didn’t you want to take pictures? Are you sick?’ and he said, ‘No, I can’t stand the heat’; that she then said to him, ‘Come in and make yourself at home,’ but he said friends waiting downstairs, so they shook hands and he left the premises; that she could not swear definitely as to the time, but she thought it was about 1:30 or 20 minutes to 2.
Upon cross-examination she testified that her mother was on the premises that day; that she called her mother around 12:30 and placed her at the middle window; that the mother had instructions to call her when the parade started; that her mother called her when she heard the music, when the parade was starting, but she was busy and did not see much of it, but said, ‘Mamma, when Mayor Rolph passes, call me’; that she thinks some of the parade passed first and then the Mayor passed and she went to the window where Dr. Shane was working, waved a towel in front and said, ‘Hello Mayor Rolph!’ There was thereupon exhibited to her a picture of 721 Market street with a towel or white rag being waved out of the window (Defendant’s Exhibit [210 Cal. 738] 3), but she testified, ‘That is not me in the middle window.’ She further testified that it may be she last saw Billings before the mayor passed or after; she could not state the time.
The following testimony of this witness, taken before the grand jury, was thereupon stipulated into the record: She first related, in substance, as above set forth, the story of Billings’ presence in the hall, his request to take pictures on the roof, and his apparent nervousness. She testified that he walked up and down and into the hall; that she wiped his face for him and gave him a glass of water and then opened the laboratory door and asked George, the mechanical man, if he would keep the suitcase and suggested to Billings that he take a walk and get a little fresh air if he was affected with the heat; that as she stooped toward the suitcase he said, ‘My God, girl, don’t touch that’; that she jumped and said, ‘What is the matter with you?’ that she then called Louis Rominger and he took Billings and helped him up on the roof; that, when her mother called her and said the parade was starting, she waited about fifteen minutes and then started watching and waved to Mayor Rolph; that she then walked to the reception room and the man Billings was coming down, very agitated; that he put his suitcase down; that she invited him to make himself at home, but he said he would not wait; that he had friends waiting for him; that he shook hands; that before Billings came down from the roof, a tall foreigner had come up the stairs and she had had an argument with him; that a woman she now knows to be Mrs. Mooney ran part way up the steps and said ‘Come on down’ to him; that they both left the building and about five minutes later Billings left. She testified that Billings carried his heavy suitcase himself until Louis Rominger lifted it to the roof for him, saying, ‘My God, that is heavy camera.’ She also stated that she noticed Billings’ defective thumb and mark or scar on his face.
Upon resumption of her cross-examination she further testified that she could not swear to the exact time Billings was on the roof; that she never saw him there, but gave Mr. Rominger permission to take him there; that she herself never passed the mechanical door where the gold was kept; [210 Cal. 739] that after Billings went down the hall with Rominger she resumed her work; that three or four patients came up to view the parade; that the parade was not passing when Billings first came to the offices. She is sure it started thereafter because she told him to go out and take a walk, there was lots of time before the parade. She stated that she supposed Billings was on the roof because there was no other place to go except the hall; that the back hall was dark; that she noticed Billings’ defective thumb and the mark on his face; that it was not until about five minutes after the above-mentioned foreigner left that Billings came down from the roof; that she was not positive as to the time. On redirect examination she reiterated that with reference to the time Billings went down from the roof she could not swear positively whether it was before or after she waved to Mayor Rolph.
At the recent hearing Estelle Smith testified that she was the identical woman who testified at the trial; that she was employed on July 22, 1916, as a dental nurse for Drs. Strub and Shane; that she saw petitioner at 721 Market street about quarter to one when he came up to the office and asked permission to take pictures on the roof. She stated that she had not seen and did not wish to review her former testimony. She then related in substance the story of petitioner’s visit, his request, his nervousness, wiping his face, etc. She stated that he said it was pretty warm and asked if she would take care of that suitcase because he would be back for it; that she had lots of requests like that, out-of-town patients who wished packages checked, and so she called the laboratory man, a Japanese, and said, ‘George, take this man’s suitcase and if I am out to lunch when he comes back you will know him when you see him and give it to him’; that she started to pick up the suit-case and he said, ‘My God, don’t touch that, you will strain the lenses in the camera,’ that she said, ‘you scared me’— he spoke so quickly; that he went downstairs, and later came back; that the doctor had not returned and she let him go on the roof and had Mr. Rominger help him up; that she cautioned Mr. Rominger, ‘Keep your eye on him because I do not know who he is,’ the doctor having cautioned her about supply men; that while he was on the roof a Greek [210 Cal. 740] patient and his two small children came in the office and she had Mr. Rominger help the little boy up to have his picture taken on the roof; that a little later the parade started and she endeavored to work and watch it at the same time; that as Mayor Rolph passed she waved a towel and said ‘Hello’; that Dr. Shane said, ‘There won’t be any ‘hello’ in your paycheck,’ and she had to get back to work; that she did not return to the window, but as she left the room where the doctor was working, petitioner was coming off the roof; that he came off and departed after she waved to Mayor Rolph and this fact was established in her memory by the doctor’s instruction to get back to work. She further stated that later Dr. Shane told her to buy a paper and when he saw the picture in it he said, ‘It looks like the fellow who was up here from the Chronicle, don’t it?’ that later still, Mr. Vidovich came in and said, ‘We nearly got bomb * * * the man’s picture was in the paper.’ Many other persons also approached her to discuss the occurrence and she was finally taken to police headquarters and examined at length; Mr. Wade, Mr. Vidovich, and John MacDonald also being present.
She stated that the officers brought in twelve or fourteen men all in a row with caps on and she stated the one on the end was the man who had been at the dental office (he being petitioner); that the men then came in again without hats and she again picked out petitioner as the man in the center. Without being told whether her previous identification was correct, she was then taken upstairs where she heard the voices of two men and identified the voice of one of them as that of petitioner. She was then shown the two men and picked out the one she knew to be petitioner, mentioning that his thumb was crippled and his forehead marked or scarred, as she had noted when she wiped off his face. She further stated that these identifications were made in the face of all attempts to confuse or mislead her.
She further testified that she first met Mr. Older almost a year after petitioner’s conviction, when she was taken to his office by Officer, Hand; Tom O’Connor and Mr. Hoffman also being there present; that Mr. Older invited her for dinner that evening; that she accepted and he later arranged for her to interview petitioner at the city prison; that at this [210 Cal. 741] interview she asked petitioner why he did not tell the truth as it might help him; that he replied that he did not know anything about it; that mothing she said would hurt him; that he had been employed by the unions to aid a machinists’ strike by squirting acid on automobiles, the implements for this work being in the said suitcase; that after this interview she tried to see Capt. Matheson to give him such information and also other officials, all with a view to helping petitioner, in whose behalf her sympathies had been aroused; that later she refused to sign a statement in Mr. Fickert’s office.
She further testified that petitioner also told her that he came to the dental office primarily to fill the bulb or syringe with which he squirted the acid; that she firmly believed if the suitcase had been opened at that time only acid and bottles would have been found therein. She stated that she would never again identify any one for anybody as she had been shamefully treated; that she never doubted her identification of petitioner as the man who came to the dental office, unless it be that two men exist with defective thumbs and marked foreheads, one a double of the other. She further testified that petitioner told her at an interview at the city prison that he would have told what was in the suitcase, but he had no friends and his attorney said they did not want that mentioned; that she herself would have told it at the trial had her answers not been confined to replying ‘Yes’ or ‘No’ to questions. She stated that she was present at one time when Mr. MacDonald identified petitioner, as did also Mr. Vidovich. She testified that at an earlier interview with petitioner— the only other time she ever talked with him after the suitcase incident— she told him she was sorry and he continually assured her that she could not do anything to hurt him; that, however, he never denied being in her office; that she also received a letter and poem from petitioner, the poem being original, something about a soul confined.
She testified to doubts coming and going with respect to her identification of petitioner when she realized she might be responsible for depriving him of life and liberty; yet she would not say that it was in her mind that he was not at the foot of Market street at the time of the explosion [210 Cal. 742] as she could not understand, if he was innocent, why he gave such a rambling account of his movements to Mr. Older. She stated, however, that she knew positively that petitioner felt as though he stood alone and had no friends. She again described the suitcase as about 20 inches long and of a dark brown color, very heavy and weighing well over thirty pounds.
She further testified that, after petitioner told her she would strain the lens of the camera, she called George, the Japanese laboratory man and said, ‘George, take this man’s suitcase,’ and told him to come get it and look at the man; and, if he came for the suitcase while she was out at lunch to give it to him; that the Japanese came and took the suitcase into the laboratory and she last saw it on the floor there; that petitioner did not protest at this action of the Japanese, but asked them to check it until he came back; that the only way she remembers when he came back is that the doctor didn’t get back from lunch until 1:20 or 1:30 or 1:15 and the man had already got the suitcase and gone on the roof before the doctor returned; that she was there when he came back and told George to give him his suitcase and told Dr. Rominger to help him on the roof; that he showed no nervousness when the Japanese carried the suitcase into the laboratory. She again fixed the time of petitioner’s arrival at 12:30 or 12:45, stated that the doctor returned from lunch probably about 1:20 or 1:30; that petitioner was there about 15 minutes before he left after depositing the suitcase with George, that is, that he was away about fifteen minutes before he came back to take over his suitcase again; that the doctor returned about 1:20 or 1:30 while petitioner was on the roof; that petitioner left the building ten or fifteen minutes later; that she hailed Mayor Rolph at the window, and, when she came back to the door, petitioner was then going down the stairs, spoke to her, shook hands, and left— in other words, that petitioner left almost simultaneously with or immediately after the incident of waving the towel.
She reiterated that she was now telling the truth; that she had not refreshed her memory from her former testimony; that she believed she now remembered clearly enough to truly testify as would anyone who had been bothered by [210 Cal. 743] a thing for fourteen years. She stated that at one time she was threatened day and night on account of her testimony in the matter. She further stated that, after she let petitioner in, there entered the dental office a girl of about 14 years and a boy of 11 or 12, the children of the Greek patients, Mr. and Mrs. Pappas; that people who had gone in through the Kahn building next door were also on the roof and various other people. She stated that she had reported to the Governor’s office three days previously voluntarily because she felt the Governor really wanted the truth.
Question No. 1 Continued. Claims of Impeachment as to Witnesses Identifying Petitioner at 721 Market Street .
— No charge is made against the integrity of either Moore or Wade. It is true a witness, Dodge, testified to an incident with Moore bearing striking resemblance to the occurrence he says was with Billings, but Moore visited Dodge and positively declared that he was not the man to whom he referred.
Vidovich is attacked because some fifteen years previously he pleaded guilty in Alaska to a charge of petit larceny and paid a fine of $100. This would not impeach him nor be admissible for that purpose, nor would it in fact reflect seriously upon his testimony concerning an occurrence fifteen years later in which he had no interest.
The witness Rominger is sought to be impeached upon the ground that on a previous occasion he had said in the presence of two witnesses that he did not recognize petitioner as the man he saw at 721 Market street on the day of the crime. This matter was urged on motion for a new trial, considered, and the motion denied and it must be presumed that it was then given due consideration.
Estelle Smith: This witness was the object of a spirited attack by the attorney for petitioner, but she was treated with compassion, if not sympathy, by others interested in the cause of petitioner. This witness is voluble, if not garrulous. She, too, was dynamic and dramatic, but her remarkable memory for detail and her apparent patriotic sincerity must have impressed all who heard her. She was in deep sympathy with the petitioner and apparently anxious to have him released. But in convincing detail she set forth [210 Cal. 744] time and again the identification of petitioner and the method by which she knew she could not be mistaken. The features of the visit of petitioner to her place of employment, his actions, his appearance, his agitation or sickness, his pock mark, and his injured thumb were set forth. The size color, and weight of the suitcase was stated. The only thing she was not sure of at the trial was the exact time, but on this hearing I fear she was too sure of this. There are doubtless errors and misstatements in her testimony, but that she saw petitioner at the time and place claimed there is in my mind no doubt. It is true that she may not have led an exemplary life, but she still has some good qualities left, and this is vouched for by Mr. Fremont Older, who has been the bulwark of petitioner’s fight for delivery from prison. This witness fell under the influence of Mr. Older, so much so that they dined together two or three times a week for months, if not years, at the Black Cat and other restaurants. She adopted his philosophy of life, a part of which is that isolation should be the practice instead of punishment of those who commit crime. So great was the absorption of his philosophy that they exchanged valuable presents, she receiving from him a valuable wrist watch and a string of pearls and order on the dry goods store. He loaned her $50 too, which she repaid in two Panama hats. Induced by Older she agreed to accompany him to the prison to meet petitioner and talk things over together, she buying some cigars, etc., for petitioner on the way. Older admits practically all these occurrences, including the visits to the prison. Older admits that to petitioner’s face, Estelle Smith told him that he was at 721 Market street, as claimed by her, and she states that when charged with being at this place petitioner admitted the fact and stated that he had the suitcase filed with acid to destroy paint on automobiles; that he was up there to fill his syringe from the contents of the suitcase. She also stated that petitioner produced a book of cigarette papers having the license numbers of the cars upon which he had squirted the acid. Petitioner in his own behalf admitted the acid throwing, admitted the cigarette book, but denied his presence at the place claimed, also possession of the suitcase. Estelle Smith claimed to have received the [210 Cal. 745] cigarette book from petitioner and to have given it to Capt. Duncan Matheson, which claim he positively denied.
The chief ground of impeachment is that at the behest of Mr. Older, covering a period of years of constant importuning, she, on March 19, 1929, gave an affidavit, the substance of which was to admit that she was a morphine addict at the time of her testimony in court. At the recent hearing, however, with respect to said affidavit, Estelle Smith stated that for years Mr. Older had wondered and, in fact, made her wonder whether she could have been mistaken and because on account of her testmony, petitioner could not get his case before the governor and was going to be in prison all his life, she took the chance of giving him the opportunity for a hearing by signing at Mr. Older’s request an affidavit fixed up by him, Mr. Peete and another man in the Call office, which affidavit was not in harmony with her other testimony; that this unhappy affair had softened her character to such an extent that she would do anything to give any one a chance, although she would not intentionally perjure herself, but she was led to believe that perhaps in this large world there might be an exact double of petitioner. She stated her present purpose was just to tell the truth.
The witness thereupon examined the affidavit of 1929, which she stated she had signed under mental influence at a time when she was ill and resistless, with the sole thought above indicated and that some of its contents were true and some false; that Mr. Older knew she was taking medicine as she took it right at the table before him and she also took it in open court because she was coughing; that a jacket was put on her because she had pneumonia; that, if the medicine had cocaine or morphine in it and she had been under its influence, she would not have identified petitioner; that she never took a day off from work except when she was in the hospital and if the medicine had any effect on her senses it would not have been right; that Mr. Older took fourteen years to gain enough of her confidence and friendship to ask her to sign anything and that she never saw the statement that her testimony was given through fear of District Attorney Fickert; that part of her conversation is not in the affidavit at all and she believed the whole [210 Cal. 746] thing to be in it when she signed it; that later she learned that she had signed a statement that she had taken said tablets and was not mentally responsible and she went to a doctor and asked about it and he said she need not worry, that every cough prescription had certain amount of drug in it, codeine, morphine, or other thing; that a clerk in the Owl Drug Company told her the same thing; that she went on a vacation then and never took the cough medicine nor did she need it; that now she has had no cold for a long time and never drinks or smokes and is now strong and healthy; that she was with Mr. Older almost two hours and signed the affidavit because he wanted her to, through undue persuasion over a period of years, telling her for years she was a liar; that she has always known petitioner was in her office and never doubted his identity after she testified before the grand jury; that she would only doubt is she saw another man with a forehead and fingernail in the same condition; that she was never threatened with perjury; that she does not know what Mr. Older had in said statement, she did not read it.
When this hearing started, Estelle Smith, of her own volition, called up the office of the Governor and later volunteered as a witness. She portrayed her relationship to Older and told how she had been converted to his viewpoint on crime. She stated that she was not and never had been a drug addict; that the statement in the affidavit was untrue. She stated that she had been persuaded to weaken on her identification of petitioner in order to attract the attention of the Governor to his case; that she was told by Older that unless she did so the Governor would ignore the case. This statement of the witness bears striking resemblance to the occurrence where Older admits that he published an article entitled ‘Fickert Framed,’ ect., when he knew this statement was incorrect, but that it was justifiable in order to focus public attention on the causes of Billings and Mooney. As above stated, Estelle Smith gave so much evidence, with such precision and in such detail, that one hearing her could not doubt that in the main she certainly was telling the truth. On her testimony, coupled with the other facts detailed in this connection, I am satisfied to stand upon the finding that petitioner was, at or about [210 Cal. 747] the hour of 1:15 and prior to 1:51, at 721 Market street, with a heavy tan suitcase and that in denying the fact the petitioner has wilfully suppressed the truth.
Question number one must be answered yes.
Question No. 2 .
Was the petitioner at or near Steuart and Mission streets on said day without a suitcase just before and at the time of and immediately following the explosion (this point being less than a block from the scene of the explosion)?
On this question we have only the testimony of one witness. John Crowley testified that he was an automobile machinist employed on the day in question at 50 Mission street, the corner of Steuart and Mission, and that he was in that vicinity from 1:30 in the afternoon until 6 o’clock that night; that he knew petitioner and saw him that afternoon— he is positive sure it was 1:55— standing about three feet from where he was; that he had no conversation with petitioner; that he remembers the explosion and saw petitioner at Steuart and Mission streets right before the explosion occurred and thereafter; that lots of people though the explosion was just to stop the parade, and as soon as it occurred the band was started up and played the ‘colors’; that everybody took their hats off, but petitioner and the man that was with him, and this attracted his attention to petitioner; that a man in the crowd said, ‘Take your hat off,’ but petitioner paid no attention, turning around and walking away toward Howard street; that what made him take notice of petitioner was to hear somebody holler at him on account of not taking his hat off. He then testified:
‘Q. You are positive he was the man, are you?
A. Yes, sir.
‘Q. Cannot be mistaken about it?
A. No, sir.’
Upon cross-examination he testified that the man with petitioner was a tall slender man, about two or three inches taller than petitioner, dark, either Spaniard or Mexican; that at the time the explosion occurred Mr. Riley, for whom the witness was working, was just about sitting down at a dinner table in the restaurant and he was on Riley’s corner of Steuart and Mission, petitioner and his companion being about three feet from where he was; that he had talked to nobody except the police officers; that they made him no offers of any kind; that he now sold coal oil and had a gasoline station right opposite the scene of the explosion; [210 Cal. 748] that he did not see Mooney there that day nor did he see him at 1:55 with petitioner; that petitioner had nothing with him nor had the other man, who was dressed in a dark suit with a split Fedora hat; that there was no doubt in his mind either as to his impressions, his identification, or any of the details of his testimony. This witness was not asked to describe the man he identified as petitioner, perhaps because the witness had stated that he knew him. The fact of acquaintance was not denied by petitioner.
Impeachment of Crowley (Question No. 2 Continued ).
No attempt was made at the time of his testimony to impeach this witness. Since the trial it has been urged that he was arrested for failure to comply with an order for alimony in a divorce action; also that he had communicated a loathsome disease to his wife. Neither of these things, if true, is recognized in law as admissible for the purpose of impeachment. Crowley is dead. He died in the service of his country during the World War. This effort at impeachment must be held to have failed. A witness, Clairborne, was introduced to show that Crowley was elsewhere at the time and place testified to, but this witness had a prior felony conviction of perjury against him, and cannot, therefore, be given any serious credit; moreover, he was contradicted by a reliable witness, Moore. This question may also be answered Yes.
Question No. 3 .
Was the petitioner seen by the witness MacDonald to place the deadly contraption at the scene of the explosion at a time shortly before 2 p. m. of said day, in company with Tom Mooney or some other person?
As to the testimony as to the placing by petitioner of the suitcase containing the bomb, we have the following: John MacDonald testified that he was a waiter; that he was in the vicinity of Steuart and Market streets on the afternoon in question; that he recognized the petitioner and saw him on that afternoon, as near as he can remember, at eight or ten minutes to 2; that he was standing about twelve or fifteen feet from Market on Steuart street and petitioner was coming down the street carrying a suitcase, his actions attracting the witness’ attention to him, that is, carrying the suitcase on the outside and his head working just as though it was on a pivot, turning around this way all of [210 Cal. 749] the time (illustrating); that petitioner put the suitcase down there about 2 o’clock; then shoved the saloon door open, and another man and he came out and stood up by some brick; that he saw petitioner set the suitcase down and saw the suitcase there after petitioner went to the corner; that he stood and watched the actions of petitioner and the other man and was there at the time of the explosion. He testified: ‘Q. You observed him across the street and are positive he was the man? A. I certainly am, as God is my judge.’ He stated that after the explosion he saw where it occurred, and it was right where the suitcase was left, at the place of indentation in the sidewalk.
Upon cross-examination the witness testified that he had lived in San Francisco about five years; that Billings was by himself when he came down the street, but was accompanied at the corner by a man the witness later picked out as Mooney. He stated: ‘Q. And you are sure it was Mr. Mooney as you are that it was Mr. Billings? A. Yes, sir, just as sure as I am sitting on this chair.’ He then repeated his story, in substance, as follows: That he happened to look up Steuart street and saw the man coming down carrying a suitcase, with his head working just as though it were on a pivot; that he said to himself that he was going to see some fun, as the man either stole the suitcase or was playing a joke; that the man came down by the side of the builing, walked to the corner into the saloon door; another man came out; that they talked a few minutes and took their watch out, looked at the watch and towards the Ferry building a couple of times; then the man with the suitcase went to the corner and was lost in the crowd; then the other man shoved the door open, looked in, came back, and stood a second or so, looked toward the clock on the Ferry building, then turned and looked up Steuart street towards the side of the building and at his watch again, etc., then took a hike through the crowd; that the witness then went down and got a glass of buttermilk. In his testimony before the grand jury the witness had stated that petitioner took a right cut through the parade; that Mooney, after looking at his watch by the saloon door, cut through the parade as though he were going across Drumm street; that the witness started down Market street and got as far as the Alameda Coffee House, 125 or 150 feet from the [210 Cal. 750] saloon, when he heard the explosion. This testimony he admitted having given and further testified that petitioner was the first to leave; that Mooney looked at his watch several times thereafter. He denied having told a barber in the presence of other customers, ‘Yes, do you know it seemed to me like in a dream; I saw a man set a suitcase down; then I looked into the saloon to see the time, and walked half way down the block, when the explosion went off.’ He also denied saying to another party, ‘When these fellows go over the road and I get mine, back to the East for me.’ He also denied saying: ‘I am getting paid for my work. * * * I think it comes off the state. * * * I am getting three dollars a day right along and I don’t have to wait until the end of the trial.’ He also denied having told Capt. Requa of the Salvation Army Barracks that the chief told him that he would get the reward and he would go back to Baltimore with plenty of money in his pockets. He also denied saying, ‘When I get mine, and those men, Billings and Mooney, are railroaded, back to Baltimore for me.’ He insisted that his name was John MacDonald, and not James T. McDaniel. He stated that on the day in question there was a crowd right along Market street and people parading, although he could not recall the units which were in formation; that, however, the Grand Army was standing on Steuart street, waiting to fall in line, but they had not started to go when he left. On photographs, Defendant’s Exhibits 5 and 6, he marked the place where he stood. Recalled for further cross-examination, he testified that he did not think he said to Fred Harris, ‘I am a star witness in the bomb case, and when it is over I will go East on the cushions with plenty of money in my pockets,’ but he would not say he did not. He denied making a similar remark to one C. L. Logan and also to Richard Cowan. Recalled in rebuttal, he stated that he first reported what he saw to the police on Monday morning after the explosion, between 10 and 11 o’clock; that he had talked to no officer prior to that time except that when he came from the restaurant he was going to go in and tell the sergeant, but the man in charge would not let him enter the area that had been roped off, saying, ‘You can’t tell him nothing,’ to which he replied, ‘Well, you people know it all.’
[210 Cal. 751] Corroboration (Third Question Continued ).
The testimony of MacDonald is vehemently assailed as unworthy of belief. In this connection it should be noted that MacDonald testified substantially as above on four other occasions during the several trials of the defendants charged along with petitioner; that he stood cross-examination by eminent attorneys such as Bourke Cochran, Maxwell McNutt, and Nathan Coghlan without betraying a single weakness. He evidently convinced two juries as to the identity of petitioner and Mooney. No effort was made to impeach him by any of the methods known to the law. He told his story to some five or six different persons before going to the police department. He even tried to get an audience for this purpose with the police at the scene of the crime and shortly after the explosion. He voluntarily went to the police department and there to an officer who did not know petitioner, nor had he suspected him in connection with this crime, he picked from a set of some twenty-five or thirty photographs both petitioner and Mooney, picking petitioner first. Later, under circumstances involving a substantial test, he identified in person the petitioner. After testifying in the several trials he remained in California until the year 1919, during which period no indication was given that he had any desire or intention of repudiating his former testimony. He left California and finally as late as January 11, 1921, wrote a letter to Capt. D. Matheson in which he referred to his former evidence as follows: ‘I will say, if I was on my deathbed and the last words from me, would be that he is guilty, and that what I swore to was nothing but the truth, and I am willing to take the stand tomorrow and swear to the same things.’ The evidence of many disinterested witnesses is that MacDonald was a radically different man in 1916 to what he was in 1930 when appearing again in this hearing, and it is to be noted that even now he clings ot his former story in all essential particulars except as to identification. But as a pitiful cringing wretch he appeared before us and undertook before our eyes to destroy himself as a witness by claiming his former identification to have been fictitious and false.
[210 Cal. 752] Matter Claimed as Impeachment (Third Question Continued ).
MacDonald on February 7, 1921, gave an affidavit in Trenton, N. J., purporting to repudiate his identification and blaming the district attorney and police for putting the false identification of petitioner and Mooney in his mouth. Every portion of his affidavit which involves the officers of the law is now conceded to be false, and on its face, this would be the conclusion anyway. We have therefore nothing upon which to condemn his earlier testimony except this unexplained repudiation. It is contended that, now being a moron and liar, he must perforce have been such in 1916. This is supported, it is contended, by the fact that in 1914 he was treated for syphilis, which must have undermined his intellect even at that period. This previous condition was doubtless known in 1916 by the defense; moreover, it was not and could not have been used under the law to impeach him and would not be sufficient anywhere unless, perhaps, where it had reached a stage where his mind was entirely subverted by his condition. The evidence submitted shows three abdominal operations upon the witness, with the syphilis treatment as incidental, as under the Wasserman test the showing in 1916 was negative. He doubtless was either cured or substantially so during this period in question and for many years thereafter. It must now, of course, be admitted that he is but a shell, the mere clay of a former man. He came closely watched and personally attended by two men, with at least two other persons hovering nearby during the trip across the country. He had no power of continuity of thought, a mind scarcely stronger than that of a child, being now about 58 years of age and in a dwarfed and wretched physical condition as well.
But what further facts surround this witness? It appears that about the end of the year 1920, one Nockels, secretary of the Chicago Federation of Labor, found out that MacDonald was probably in Trenton, N. J. He journeyed there from Chicago, identified him through the window and sent for another Chicago man by the name of Jack Johnston. Nockels quartered himself in New York while Johnston, under the name of Thompson, quartered himself in the [210 Cal. 753] hotel with MacDonald. Johnston associated with MacDonald some six weeks, reported two or three times a week to Nockels in New York and finally at the end of this period, by some kind of magic, the affidavit of February 7, 1921, by MacDonald resulted. Following the execution of the affidavit, Johnston and MacDonald, with at least $500 each and round-trip tickets and a one-way compartment, started for California. Fremont Older was notified of their coming. Two reporters were sent by Older to meet the party in Sacramento and to deflect them to San Jose, where they were quartered some two months at the expense of Older and Johnston, one or both. MacDonald paid for nothing, frequently displayed his roll of greenbacks, and claimed to have $1,500. He was well dressed, associated freely with dissolute women of the town, and left eventually for the East with yet $900 left. He was again found in 1930 and returned to California with a train of attendants and gave the repudiation above referred to. A weaker, more pitiful, effort to crucify oneself as a witness cannot be found in the annals of criminal procedure. His testimony before us was weak, disconnected, puerile, and had such been his condition in 1916, no jury would have credited him for an instant.
My conclusion is that in 1916 he acted honestly and at least believed in the authenticity and accuracy of his identification. This follows because of his own volition he identified the pictures and identified the petitioner personally. The discrepancies in the description given a policeman prior to seeing the photographs is not sufficient to overcome these positive identifications made from more accurate facts. It is true that the description first given does not in all respects tally with petitioner, but this kind of identification is weak and at best susceptible of error which would fade on sight of the same person again. Moreover, the scrivener who took down the statements may himself have been in error. I conclude, therefore, that petitioner has not sufficiently overcome the identification made by MacDonald but, on the contrary, I find that MacDonald was overreached and enticed from the truth by illegal and illegitimate means.
Questions 4 and 5 .
Is the alibi put forth by the petitioner established? Is it made invincible by the photographs showing [210 Cal. 754] Mooney on the Eilers building, at 975 Market street, taken by Wade Hamilton and purporting to show a street clock registering the times of 1:58 p. m., 2:01 p. m. and 2:04 p. m., respectively, on said day and showing certain units of the parade on the march? These questions may be discussed together.
The alibi of petitioner is fictitious and entirely worthless. This follows as a consequence of our finding that he was at 721 Market street with a heavy suitcase. He denies this; hence in our minds the alibi fades.
The necessity does not exist to recount his wanderings about the city as claimed by him. He could have done most of them and still have been at the scene of the explosion as the matter of time is largely an approximation. His alibi is also certainly of no value, judged by his own testimony given before us, for he concedes that he concealed from the jury the fact that his wanderings were in carrying out his duties as a sabotage agent in squirting acid upon automobiles of certain builds. Having falsified about this when he was on trial, can his present statement be of any value?
But it is insisted that, inasmuch as MacDonald identified both Mooney and petitioner as being at the scene of the explosion, and, if it can be shown that Mooney was not and could not have been at the placing of the suitcase, the alibi of petitioner becomes complete. This argument is, of course, subject to the fallacy that MacDonald could be right as to his identification of petitioner and yet wrong as to Mooney. It also presupposes that MacDonald is the only witness against petitioner, and ignores the other independent evidence directly connecting petitioner with a suitcase at 721 Market street and without a suitcase at Steuart and Mission streets, neither of which facts petitioner attempts to explain.
Moreover, the contention respecting Mooney does not present an unassailable alibi.
The contention is that Mrs. Mooney was shown to be on the Eilers building at 1:58 p. m. and Thomas J. Mooney at 2:01, 2:04 p. m., so he could not have been at the point where the suitcase was placed at any time subsequent to the time when petitioner, with a suitcase, left 721 Market street. But if the accuracy of the times Mooney was on the Eilers building be conceded, it is of small value unless the time at which petitioner [210 Cal. 755] left 721 Market street is definite, and it certainly is not so. As will be noted from the testimony above, the preponderance of the evidence is to the effect that petitioner left said place prior to the passage of the parade at that point, to wit, about 1:50 or 1:51 p. m.; this being the time of arrival there of Mayor Rolph, who led the parade. Moore is positive that he saw petitioner standing near the Ford jitney belonging to his codefendant Weinberg when the parade was some blocks down and below Montgomery street; that in his judgment this was fifteen or twenty minutes to 2. He was shown a photo taken at nine minutes to 2, which showed himself and also Mayor Rolph in the parade, but it also showed that the machine and petitioner were gone and Moore states that this occurrence was after he returned to the place from an errand up the street, which he was about to make when he saw petitioner and queried him about the standing jitney, as above related. From this evidence, we are well warranted in concluding that petitioner left this point prior to 1:51 p. m. Furthermore, the point was specially argued and stressed before the jury— that is, whether petitioner left before or after the mayor passed in the parade. The testimony of Moore was corroborated by Rominger. It is true that Estelle Smith at the hearing before us stated that petitioner was still at the dentist’s building at the time the mayor passed. A reference to her original testimony, however, shows, as above quoted, that she was not positive whether petitioner left before or after she waved the towel at Mayor Rolph passing in the parade. With petitioner leaving 721 Market street at any time before 1:50, or 1:51, plenty of time intervened for him to get by auto to Steuart and Market streets, where the bomb was set, at the time approximately fixed by MacDonald. The time fixed by the latter was between ten minutes to 2 and 2 p. m. The distance from 721 Market street to the scene of the explosion is 4,066 feet; the distance from the Eilers building to the same point is about 6,000 feet. Traveling by fast jitney only three minutes or so was required between the first two points and some five minutes between the other two points.
A man who would commit such a crime would be cunning enough to construct a clever alibi; but we are satisfied that the suitcase could have been set some minutes before 2 p. m., [210 Cal. 756] and in time, if it be material here, for Mooney to be on the Eilers building, at about the time shown in the pictures.
Moreover, in this connection, we are not prepared to say that the time shown in the Wade Hamilton pictures is accurate to the moment. They undoubtedly are approximately correct. This has been verified by various methods, but it is far from saying that the clock shown therein has been accurately read. There is much to suggest that the pictures did not disclose any readings of this clock. Two photographers attempted by enlargement to produce a reading on these pictures, but failed. The negatives are not before us. Some of the pictures in evidence and relied upon as to the claim of alibi for Mooney do not show numbers or hands on the face of the clock. The position of buildings in the pictures are out of due relation to each other, caused by the position of the camera. This fact may show a small error in the apparent position of the hands of the clock.
How much weight should be attached to the affidavit of C. M. Myers, the photographer, need not be appraised, but he avers in substance: That for more than thirty-two years he has been continuously engaged in the business of portrait photography in San Francisco; that in the latter part of July, 1916, or the fore part of August, two men, unknown to him, called at his studio and produced a film negative which had been exposed for a photograph of a portion of the Preparedness Day Parade, which exposure had been made while the camera containing the film was placed on the Eilers building, or a building immediately westerly therefrom, and pointed in a northeasterly direction, showing some people on the top of the roof of said Eilers building and a portion of Market street, and a number of march units in said parade; that said visitors said the people so depicted included Mr. and Mrs. Thomas J. Mooney, and that said camera, in making said exposure, was directed as above indicated and downward from the top of said building; that the spokesman for said two men pointed to a black spot on said negative, little larger than the head of a mediumsize ordinary brass pinhead, which he stated was a clock face of a large sidewalk clock on the northerly side of Market street between Mason and Powell streets and 600 feet more or less away from the camera; that affiant examined said spot under a [210 Cal. 757] strong lens and discovered that the film was burnt up, overexposed as to said spot, and absolutely black in the negative, and could not print other than a blank white spot; that said spokesman further stated that he wanted an enlargement of said negative to show the clock, and said, in substance, ‘I think I can see the time or hands on the clock; if you can bring out the time, we will make it worth your while,’ addressing affiant; that, however, affiant’s examination disclosed to him that the negative was so overdeveloped and burnt that there was no possibility of their being developed numbers indicating the hours or the hands of said face of said clock and so informed said visitors; that said spokesman then asked affiant who might be able to do the work requested, and affiant told them that one of the handwriting experts, who also did photography, might fix it up for them; that no one could have found any time indication on the alleged clock in said negative; that, in order to disclose any time or hands on the face, it would have been necessary to retouch or insert into said negative or enlargement thereof, the hands, which could readily have been done, as it is a very simple thing to do; that affiant does not recall seeing the men either before or since said occurrence and does not think he could identify them if he saw them again.
I think also that a reading, and certainly an accurate reading of this dial could not in any event be positively made to the minute, and a latitude of two or three minutes would be all-sufficient ot upset an alibi such as is here claimed for Mooney. We conclude that petitioner has not established his innocence by the alibi method.
Question Number 6 .
Lastly, did not the petitioner practically admit his guilt to Mr. Brennan and others?
James Brennan, assistant district attorney, testified to a conversation with petitioner soon after his arrest, in which petitioner recounted to him the steps taken by the prosecution and the evidence they had thus secured, such as a secret meeting between Mooney and petitioner at the office of the Blast on the day previous to the explosion, the meeting being arranged by the titular head of the I. W. W., George Speed; the visit to Mooney’s home the night before the explosion with a camera or package; and that, being pressed for a confession, petitioner said, ‘You have got part of the [210 Cal. 758] story and you expect to get the rest of it from me; * * * I am not going to tell you; ’ that at another time in the conversation he said, ‘If I did tell you what I was doing how would I know you would not use it against me.’ The argument of counsel is that petitioner referred by the above remarks only to the fact that he was suppressing the acid-throwing story. But petitioner himself did not offer this explanation. He denied emphatically that he ever made such a statement at any time. Mr. Brennan was apparently in more or less sympathy with petitioner and showed no hostility to him; in fact, he has visited him at Folsom and recommended a pardon for him. We credit the statement and believe it shows, if not a consciousness of guilt on the part of petitioner, at least a guilty knowledge of the crime.
We have not discussed the testimony of the two Edau ladies, who claim to have identified petitioner at 721 Market street, for, as we held in the former hearing, the developments as to them were such that no weight should in our opinion be given their evidence. We have likewise declined to discuss the so-called Oxman expose. Oxman did not testify at petitioner’s trial, and, so far as the record shows, he had not been heard of at that time. That the Oxman development has had a reaction in the public mind on the cause of petitioner due to the propaganda made from the incident cannot be doubted. But that evidence is not in this case. Moreover, as we pointed out above, the burden rests upon the shoulders of petitioner to show not merely that a portion of the evidence against him was unreliable, but to show that no legitimate evidence of any kind exists from which his guilt could be inferred.
Recapitulation and Conclusion .
In a word, we sum up the situation again. The petitioner, a youth, had at an early age become a confirmed criminal, which included robbery and burglary, and had for years lived in a hotbed of anarchy. He was under the complete domination of Thomas J. Mooney and allied anarchists. Both Mooney and his associates looked upon this era of preparedness as the opportune time to promulgate their doctrine, having for its object the overthrow of government in this country by violence and assassination. They were feverishly seeking to make their efforts effective over the [210 Cal. 759] shoulders of organized labor, which was standing and continued to stand firmly and patriotically for the integrity and perpetuity of our institutions. Both petitioner and Mooney at the time here involved were engaged in fomenting industrial strife, involving the use of dynamite, by the same method employed in the crime under investigation. They both entertained the sentiment that some ‘direct action’ should be taken to stop the partiotic demonstration then about to take place. The petitioner, with daredevil abandon, stood ready to become the puppet of Mooney or any other anarchist who might essay to interfere with the parade. The public mind, even to the marchers in the parade, was prepared to expect a crime of some kind against this demonstration. Older was in his office fearing it. Berkman and Goldman were in the office of the Blast, doubtless awaiting it. Petitioner was the easily procured and servile agent for this purpose, who out of his own mouth admits a state of mind at the time of his arrest which should have prevented him from being at large. He had the suitcase, and he placed it at the scene of the explosion as a willful act of bravado and vandalism. So far from demonstrating his innocence to us, he has left us with an abiding conviction of his guilt.
An investigation of this application, covering the better part of two months, convinces us of a few propositions, among which are: That no ground whatever exists for this case being the actuating cause of class strife or prejudice; that petitioner’s conviction does not represent to any extent the influence or the weight of so-called capitalism, but was an honest and careful application of law against crime, nor does it betray the slightest discrimination in favor of or against any class of our citizens; furthermore, that to foster and perpetuate strife among the classes is the concealed but plain object of petitioner in refusing to apply for a parole. He accepted one under his conviction of a cognate crime in 1914. A man who has admittedly led a continuous life of crime should not by false claims undertake to circumvent the law, but should be content to prove his right to a pardon by applying for parole, and, if received, justify its issuance by a life of rectitude and virtue. If, on the showing here made, convictions could be upset by false propaganda and illegitimate means such as were used by certain [210 Cal. 760] influences in behalf of petitioner, the enforcement of law would soon deteriorate into a mere farcical proceeding. For additional facts showing the means employed to undermine witnesses, see the evidence epitomized as an appendix to this statement.
There is no reason whatsoever to recommend executive clemency for the petitioner.
JOHN W. PRESTON, Associate Justice, Supreme Court.
Appendix.
Fremont Older .
Mr. Fremont Older, editor of the Call-Bulletin, upon the recent hearing testified that he became interested in the cases of Mooney and Billings after the exposure— up to which time he had believed Mooney guilty— when a labor man came to his office saying that he had seen some letters in the East that proved to him that these parties were innocent, which letters he found to have been written by Oxman; that that evening he wrote an editorial coming out wholeheartedly for the release of the men, in which purpose he became intensely interested.
He stated that he met Estelle Smith first in the spring of 1917, after the Billings trial; that she was angry over pamphlets that had been circulated attacking her, and he believed the defense had made a great mistake in this publicity given her as they, being radicals, should have been the last people to blast a woman’s reputation and he felt that if he obtained her friendship he might possibly interest her in trying to modify her court statement about the identity of Billings, being positive she was mistaken; that she came to his office with Tom O’Connor, Billings’ attorney; that he said he would like to see her again, and, when she called later, he said he sympathized with her in this attack; that she quickly became interested in his views and showed a desire to help Billings; that he went to Billings and got the story of his life and later took her to the jail, and Billings repeated his story to her in a quiet and convincing manner; that she was very much interested and wept for him; that Billings said he was not at 721 Market street; that she told Older many times about her doubt as to the man being Billings, but that the firm was anxious for her to be a witness, as [210 Cal. 761] it would help them, intimating that she had been suggestionized and somewhat frightened; that she later told him the story which he published in the Bulletin in 1917 entitled ‘Statement of Estelle Smith’; that she was afraid to remain in town and left; that she never signed the original statement, but was the pioneer contender for the innocence of these men; that the Oxman story came out and Oxman was tried and acquitted; that Estelle Smith made another statement to him on November 12, 1920, having come to his office quite often and kept up her interest in the matter; that the latter statement was not signed, but was written up by one Levick from his notes and published; that Estelle Smith first saw it and suggested no changes; that she signed the statement of March 19, 1929, before a notary, which she had come to his office and given voluntarily; that, in her one interview with Billings, Older does not recall that Billings told her his sabotage story, but he himself might have told it to her before they made the visit; that he took Estelle Smith to dinner at Mrs. Older’s and gave her one of three or four Japanese pearl necklaces that Mr. McKenzie gave him; that she sent Mrs. Older a $50 chinese shawl and several books addressed to both of them and dozens and dozens of jars of wonderful preserves and jellies, which embarrassed them, so he tried to be kind and generous to her; that she only once asked for anything, for a loan of $50 when her mother was ill, which she later paid back in the form of not two Panama hats, but one; that he does not remember having given her a copy of the Blast or a file; that he had incurred the displeasure of the Blast by his failure to act and only remembers seeing one copy of it himself.
Upon cross-examination by Mr. Berry he stated that he only assisted Estelle Smith financially as stated and through the Goodfellow fund when she was asking for charitable purposes other than her own; that he thinks she said to Billings, ‘You know you were there, now, you were there, Mr. Billings, you were at 721 Market street, weren’t you?’ that this was not followed by the story that he went there to load a syringe; that he himself told her that story; that he recalls no conversation concerning sabotage at the jail; that she gave Billings cigars, nothing more that he knew of; that he thought the defense attorneys ought to have resented [210 Cal. 762] the attack on Estelle Smith because she was living a perfectly regular life; that he explained to her his attitude toward so-called wicked people as differentiated from the good people— people under a ban, prostitutes and ex-criminals; that his attitude was that he did not judge anybody, but believed in and tried to follow the doctrine of Christ’s Sermon on the Mount— love; that he is nativeborn American and acquired said doctrine during the graft prosecution; that he told Miss Smith he had no feeling of superiority and we were all just human beings, doing the best we could in life; that he was not trying to get her life story, but intended to influence her, as he felt her identification of Billings was the result of a good deal of suggestionizing, and he wanted to get her back, if he could, to the point not of a complete retraction, but of doubt, to the point that ‘the picture looks like a man who was on the roof’; that he got what he was working for.
He further stated that he wanted her to modify her testimony; that without finding out the truth he felt he had sufficient conviction on that because of the Oxman expose; that he laid siege upon her with this purpose; that he is now friendly with her and has respect for her and does not want to attack her, because he admires her qualities of compassion and pity; that he has testified to his recollection of what she said and has contradicted her as to what took place at the jail; that the reliability of her retraction is supported by the confession of Draper Hand, for instance, and he puts faith in the modification he secured and not in her present statements; that he firmly believes she did see a picture in the paper which she said looked like the man she saw on the roof, who might have had a suitcase, but he thinks it improbable that she saw such a man and unlikely that a suitcase was ever placed there by any individual; that he thinks she though she recognized the newspaper picture as that of the man she saw on the building, but does not place much reliance on the suitcase; that he knows nothing about the pockmark and crinkled thumbnail and does not know whether she saw such a man, but will not condemn her for romancing, as she is not the only one who has done so in this case; that her retraction was not the result of his suggestionizing is borne out by the evidence; that she sounded to him on the present hearing, viewing the matter [210 Cal. 763] as an unbiased judge, as though she were endeavoring to tell the truth; that based on Billings’ movements that day as told to him, Billings was never at 721 Market street; that the moment he saw the Oxman story he condemned the Billings Case in toto, yet Billings was convicted before and without the Oxman story; that he had seen the Edaus and found out they were very unreliable, and Estelle more so, but he never asked the Edaus for a statement; that he did not see Wade or think his testimony amounted to much, nor Vidovich nor Moore nor MacDonald, but he bothered with the Hatchers, in Woodland, for two years, but never saw them personally; that he handled $1,500 in connection with the Mooney Case sent him by the Chicago Federation of Labor to be used in making investigations; that they ran down the story of a strike-breaker with it; that he has no idea how much money of his own he spent in addition to said $1,500, probably a few hundred dollars; that his theory of this crime is that it was part of Germany’s desire to keep America out of the war, and he associated it with Bopp’s activities and the Smith story for a time, based on Smith’s alleged confession, and a story of Crowley, the boatman; that his viewpoint of crime changed when Ruef by a fluke was convicted as a result of the graft prosecutions, and he thought it would have been better if no prosecutions had resulted, although he thinks crimes of violence should be punished; that he believes in isolation for people who are anti-social, people who annoy others, but he would put the perpetrator of this bomb explosion away for life.
He further stated that he thinks most crimes are the result of pathological disorders; that property laws are man made and not God made and we are all born thieves as children and some get the property law properly instilled into them and others do not; that he believes in the integrity of our courts as far as he believes in the integrity of human nature, but as a rule they represent largely the property class, but he ran a cartoon against this court years ago, but has said nothing against it as presently constituted; that he never called the court ‘sacred cows’; that he thought Mooney was guilty at one time, but never heard of Billings, and remembers the former getting up socialistic meetings long prior to the explosion; that he did not expect the explosion, but feared something would happen because of [210 Cal. 764] a warning letter all the papers got that something would happen that would echo around the world; that he associated it with the I. W. W., and rang up the chief of police and sent the letter down; that he was sitting in his office, hoping the letter did not mean anything, and shortly after the parade started, in his room in the Bulletin office, he heard the dull boom of an explosion and told the Bulletin city editor at that time that he would be blamed for it because he, in conjunction with the labor organizations in San Francisco, had gotten up a protest against the parade and sponsored a mass meeting and given it publicity; that McDevitt at said meeting made a speech and quoted, ‘Shoot your officers and go home,’ which he felt was a great mistake, as nobody can quote Shaw, and it frightened him, and he walked out of the meeting and went home very much disturbed; that after hearing the bomb he said later, ‘I think Tom Mooney did it,’ and, when asked why, said, ‘Just by the process of elimination’; that he had nothing to go on other than his activities, etc.; that he had a haunting fear something terrible might happen, and pointed the finger of accusation at Tom Mooney, though Mooney had not been framed in his mind at that time by crooked officials, and he did not change his mind for some six or eight months, and no officer or other person suggested such suspicion to him.
He further stated that he does not think Estelle Smith was bribed or coerced, but that she was suggestionized and told an untruth, and possibly a person who could have her modify her story could have her make one; that he saw her two or three times a week or oftener for eight or nine— several— months, at his office and at dinner at the Black Cat Restaurant; that it was probably two or three weeks before she began to modify to him personally and confidentially, but she first did it for publication in the article heretofore discussed; that he was not accusing any one of deliberately framing the case, but the thing came gradually as a case comes to a lawyer when he is preparing it, more or less through suggestionizing; that he always had in mind the man who deliberately made a frameup— that was Swanson, and not Fickert— and that he said the other night over the radio that Mr. Cunha was guilty of corruption because he knew the Oxman story was false when he put him on the stand, [210 Cal. 765] and he is inclined to think he did know it; that his statement to-day is a backdown from what he said over the radio; that Cunha told him Oxman came well recommended and the thing came along gradually; that he never said officially that any particular officer was corrupt, but the result was terrible, the sending of two innocent men to prison on perjured evidence; that when he got the Oxman letters the Bulletin ran the headline, ‘Fickert Framed the Mooney Case,’ but he did not write the headline; that he got out an extra with that headline and is not apologizing for it at all nor hedging; he ordered the extra printed with Fickert in very big bold type across the whole page; if he had been Fickert he would not have liked it; that he had no personal feeling or altercation with Fickert; that he knew Fickert as friendly and sympathetic with people in trouble and instantly responsive to any appeal made to him; that he charges no official corruption in these cases; that he justifies his responsibility for a contrary statement disseminated throughout the world by his inability to otherwise express a situation where two men have been sent to prison on invalid testimony; that had he acted otherwise there would have been no possibility of liberation of the men; that he will stand for what he wrote only; that he never knew Wade, and thinks Estelle Smith is very sorry she testified too strongly; that she gave false evidence, if that is perjury, but to call her perjurer is an epithet which he does not like; that he is now satisfied that Billings was not at 721 Market street, based on his own story of where he was; if he was on the roof, that exculpates him for this crime, because Estelle Smith kept him there beyond the time where he could have committed it; that he has no great faith in either of them, but Estelle made it impossible for Billings to commit the crime; that he cannot swear Billings was not at 721 Market street; he is inclined to think he was not, but, if he was, no harm was done, because Estelle Smith kept him there so long he could not have planted the bomb; does not think there was any suitcase; if he had one, Billings did not have time to use it; that he gets the time element in by the photographs, though they could have been tinkered with to push up the hands of the clock a bit, he supposes; he thinks the Oxman incident ended the cases absolutely, and Draper Hand’s confession, for if the prosecution had [210 Cal. 766] had a good, sound case, they would never have put Oxman on; that he states it as a fact, and one can conclude what one likes as to whether it is an impeachment of the integrity of the prosecution, which he has just heretofore cleared; that he thinks John MacDonald was just hunting a reward or notoriety or just wanted to be conspicuous; that he absolves all the officials of going to MacDonald and bribing him; that he did not suggest to Draper Hand, but he got his statement of how he framed Oxman, though it took a long time, just as it did with Estelle Smith; that he was working on Draper Hand a couple of years; that he did not send him any pearl necklace, but he worked on him, became friends with him, and after a period of two years’ disintegration, he admitted his own corruption, though he got no money except his salary as a police officer.
He further stated that he also got Jim Brennan to write a letter to the Governor, and he does not remember any one else he investigated; that the labor organizations were helpful and there was probaly correspondence with them; that the Edaus never came through; that he thinks he has served the general common weal and nothing could change him, even a confession by Billings, because he could not have done it because he was not there; that yet he has no fixed opinion; that, when Mooney was arrested at Martinez, he got bail for him at the behest of a committee of labor council; that he associated Mooney with dynamiting the P. G. and E. poles; that this was based on gossip from the labor men, but he had not heard of his revolutionary articles; that he did not put his paper on the exchange list with the Blast, but will not say it was not on; that he met Berkman twice; that he told Chief of Police White to watch the I. W. W. hall, but did not know Mooney was affiliated with it; that he did not point his finger at Mooney until Saturday afternoon; that he does not know whether the story of Berkman’s life came out before the bomb explosion or after; that he did not approve of his theories, does not believe in violence; that he first knew Emma Goldman was in town on the Saturday afternoon in question; that he knew Berkman was editing the Blast; that he knew Morton as a labor man who called himself an anarchist, but never saw Nolan until after he was arrested; that, following the mass meeting on the 20th, he authorized the articles in his paper entitled ‘Folly [210 Cal. 767] of preparedness parade shown at mighty mass meeting,’ ‘Union man told to resist orders to march,’ ‘Mighty peace meeting at Dreamland rink tonight,’ but that he left the meeting in disgust when the bookseller quoted Bernard Shaw; that they were running everything they could get hold of against the parade; that he did not think America ought to go into the war unless attacked; that he had changed entirely when the Lusitania went down; that that disturbed him; that he does not feel responsible to a certain extent for the animus that prompted the bomb outrage; that he thinks it was done at the instance of the German government; that he did not expect to be accused of it, but was afraid the remark of the bookseller would involve the Bulletin, as it did very considerably and he was not very apprehensive about his standing then or during the war; that his philosophy was ‘Resist not evil’ and the saving of the world by love not hate; that he has not judged Estelle Smith, thinks she has a kind heart.
Upon being recalled, the witness testified that he made no offers of financial or other assistance to other witnesses in these cases for the purpose of influencing them to make statements at variance with their testimony; that he approached only the Hatchers, Edaus, and Estelle Smith; that it never occurred to him to bother MacDonald, although he knew of his affidavit in 1921; that he regarded Estelle Smith as the most important figure as conviction could not have been had without her testimony; that he paid no attention to Steuart and Market streets after he learned that Oxman’s testimony was fabricated; that there was a limit to his activities and he was busy with Draper Hand and Estelle Smith; that Mrs. Edau and her daughter called on him and said they were going to lose and wanted him to lend them $300, he thinks; that his little plan, mentioned in his letter to them, to help them clear title to the lots was probably to let them have the money; that they came to see him; that he did not go after them for their testimony; that it was the Hatchers he had in mind when he said he worked two years on those Edaus; that he worked about two days on the Edaus and got nowhere; that he loaned them the money, $300 in bills probably or coin, which was from the Chicago Federation which he was representing; that he has never gotten it back and took no note, duebill, or memorandum of [210 Cal. 768] the loan; that he does not remember writing Mr. Nockels or any one else that he paid it; that he has loaned more than that many times in a desire to help people; that his purpose here was to get two innocent men out of prison, whom he knows are innocent; that he did not regard himself as corrupting the two women who would lose their home if they did not get the $300; that his sympathy and regards written to them were just a polite (gesture); that he does not remember whether he could have gotten an attorney and his request, ‘Telephone if you think you can come over,’ does not imply extreme anxiety to lend them $300, but extreme anxiety to get the men out of prison, as he was working to do year in and out with utmost earnestness, and he hoped to get their story; that he does not remember what he did in investigating the Albright matter or swindle and bringing Albright to justice. The letter of Rena Mooney to Mrs. Edau was then read into the record, wherein she states the only ray of hope there is lies with Mrs. Edau and her daughter. The witness stated he had nothing to do with composing the letter and never saw it before; that local labor was the main support of said peace meeting; that Mrs. Older was one of the speakers and Rudolph Spreckels the chairman; that Rabbi Nieto was there; that he still believes it was a laudable effort to keep the nation out of the war; that later he swung over as did the rest of the nation; that he never judged the story of Estelle Smith and all who testified at 721 Market street either by contradiction or by reasonableness or any other test as to whether they were true.
Edward N. Nockels .
At the recent hearing this witness testified that he had been for twenty-seven years and now is secretary of the Chicago Federation of Labor, but that he was not a member of the Thos. J. Mooney Defense League nor of the International Workers’ Defense League; that his organization became interested in the defense of Mooney and Billings right after their trials: that the true name of the mysterious Mr. Thompson was Jack Johnston, whom he had known for twelve years; that MacDonald’s photograph was sent throughout the country to local organizations asking for information as to his whereabouts and he was later located in Trenton; that the president of the federation upon the witness’ request called for a man to come on to [210 Cal. 769] New York to make observations with reference to MacDonald for the witness; that Johnston came around Christmas or New Years, 1921, and met him in New York; that he sent Johnston to Trenton the first week in January, 1921; that a little later he was instructed to proceed with MacDonald to California; that he never went under the name of Thompson, but the two names might have sounded somewhat similar to MacDonald; that Johnston roomed in the same place with MacDonald for four, five or six weeks; that one morning he called the witness up and said MacDonald had made a confession to the hotel proprietor the night before; that the witness went to Trenton and later Johnston brought MacDonald to New York; that he was in Walsh’s office when the affidavit of MacDonald was signed on a Monday, having met them the Saturday preceding; that the affidavit was prepared by Mr. Walsh and he requested Mr. Walsh to forward it to the authorities in San Francisco and also to notify Fremont Older that he would arange for the transportation of MacDonald and Johnston to California; that he had first met Older in 1913 or 1915 in San Francisco; that MacDonald and Johnston came on to California, the money necessary to send them being furnished by the Chicago Federation of Labor, $500 in bills being given to Johnston and a like sum to MacDonald, in addition to transportation, round trip, and a compartment one way; that the witness has furnished them no further funds and cannot say who financed the present trip to California; that neither he nor his federation has any purpose in paying for the present trip, but the withness would have done it again if it had not been arranged for otherwise; that he believes MacDonald’s attorney paid his fare out here, but he was standing by and in the event no one would see that MacDonald got out to California, he would have seen to it and if the expenses are not otherwise paid he thinks his organization would pay them on his recommendation; that he does not know whether or not MacDonald has received any other money from any other source between 1921 and the present time; that during those intervening years his organization did not keep track of the whereabouts of MacDonald; that probably a year or two ago the organization again made inquiries by sending out MacDonald’s photograph for the purpose of locating him as information was received from [210 Cal. 770] Bourke Cochran’s office that he was no longer in California; that the matter came up for discussion in the federation from articles in the newspapers that pardons had been denied Mooney and Billings, one of the reasons being based upon the evidence MacDonald had submitted; that the day following the witness proceeded to Baltimore via New York because he knew from previous inspections that MacDonald had relatives there; that when he arrived in New York the next day his attention was called to an advertisement in the Scripps-Howard papers, New York Telegram, he thinks, offering $500 for the finding of MacDonald; that he called up the paper and the next morning a reporter called him up about 7 o’clock and said MacDonald had been found in Baltimore; that he met a newspaper man at the depot and took the train for Baltimore, habeas corpus papers having been taken out and the case set for 2 o’clock; that when Johnston returned from California he reported to the witness but did not say what name he had registered under at the San Jose hotel or where MacDonald had gone; that he did not know the present whereabouts of Johnston; that he believes in enforcement of law and punishment of crime, but principally from information received from Bourke Cochran he believes Mooney and Billings to be innocent; that he thinks the outside world saw in these cases an attempt to fasten the crime on the labor movement as he saw from resolutions; that he does not recollect where the movement to investigate the matter started; that the funds expended were in their contribution to the cause and he has known of the collection of other sums of money for the same purpose; that offhand he cannot name one in particular; that the organization took no part in locating or interviewing other persons than MacDonald; that, as he remembers, after Mooney’s Case, Bourke Cochran wired the president of the federation to meet him when returning enroute from San Francisco to New York; that he said there had been a miscarriage of justice and perjury had been carried on by nearly all of the witnesses, and that, unless publicity was had, innocent people were going to hang, and requested that mass meetings be held all over the country; that he would hold himself in readiness to address them, etc.; that he (witness) reported to members of his organization with reference to starting a mass meeting in Chicago; that was in January, [210 Cal. 771] 1917; that the meeting was arranged, and about four or five days later the witness received an urgent telegram from Ed Nolan, whom he had known as an official of the International Machinists’ organization, saying that they had no means and Oxman probably would testify against them and asking the witness to investigate Oxman in Illinois; that the president of the Illinois State Federation of Labor said the matter would be attended to; that as a result the Oxman letters were secured, and thereafter meetings were held all over the country, and in 1920 they decided, inasmuch as Oxman had proved bogus, it would be well to look into the matter of MacDonald, and with that purpose in mind, said photographs were sent our which resulted in his location in Trenton and Johnston was put there to keep track of him and find out whether he had been telling stories to anyone; that Johnston reported that MacDonald never talked about these cases; that he reported two or three times weekly by telephone to Chicago or coming to New York, the substance of the reports being that he had not found out anything; that he (witness) intended remaining in New York as long as it was necessary for what information they could get from Johnston and if MacDonald had never come through with a story they would have been out of luck; that Johnston was paid his expenses, probably $5 a day, charged to the witness’ drawing account for expenses with his organization; that Kesselman did not know Johnston was there because he told Johnston not to let any one know; that the deathbed confession was made in the presence of Kesselman and not Johnston, but a relative of Kesselman told Johnston about it, which relative he does not know whether Johnston took into his confidence prior to the confession or not; that Johnston forthwith reported the confession and he does not know how soon thereafter MacDonald was in New York, how much later the affidavit was made, but he was told he was sick at the time of his confession; that he does not know whether MacDonald’s contention that he was sick four or five weeks before he could get out of bed to make the affidavit is true; that probably there was no such great space intervening; that he paid the hotel bill when MacDonald came to New York with Johnston; that he identified MacDonald from the photographs; that MacDonald had no decent outfit, but he does [210 Cal. 772] not remember who bought him a suit and grip; that he received $1,500 or $1,800 check from the Federation for the California trip of Johnston and MacDonald; that he does not know how the sum MacDonald had increased, from $500 to $1,400 as he only recalls giving him $500; that he believes MacDonald is as much in his senses now as when he testified; that it is nine years since the incident and he has taxed his memory to the best of his ability; that the only explanation of searching out a man, then establishing headquarters and a surveillance over him with himself and a hired man for two months, without knowledge of what he was going to find out or suspicion, was done upon the request of Bourke Cochran and that is the only explanation the witness cares to give; that he was also interested in the defense of other persons under a charge of dynamiting, the McNamara brothers; that he believes MacDonald was coached the same as Oxman was; that Mr. McKenzie told him that the last witness left that implicated either Mooney or Billings was MacDonald; that it was necessary to find him and that he was bound to talk sooner or later.
Opie Warner .
This affiant averred that during the year 1921 he was employed as a newspaper man on the San Francisco Call and was subordinate to Mr. Fremont Older; that in February, 1921, Mr. Older requested and directed him to proceed to Sacramento and there meet John MacDonald, who was en route westerly in company with a man named Johnston; that Mr. Older instructed him to remain with MacDonald during the latter’s visit in California; that, obedient to said direction, he, in company with Allen McEwen, proceeded to San Jose, where they took up their residence in the St. James Hotel; that for several weeks thereafter he accompanied and was with MacDonald continuously and constantly, night and day, carrying out Mr. Older’s instructions; that MacDonald was well-dressed, had good clothes, and carried on his person a large sum of money in a roll of currency, and which, at the time of his arrival or thereabouts, he stated to affiant, contained $1,500; that MacDonald was not loath to exhibit it and frequently flashed it during the time affiant was with him; that he spent it rather generously for buying intoxicants and upon women whom he met in San Jose; that during this period MacDonald had little expense as his quarters at the hotel were paid for and [210 Cal. 773] affiant paid for his meals, so that the money he had was not devoted to actual living expenses; that after several weeks in San Jose, in affiant’s company, and at the time of MacDonald’s departure, he had in his roll of currency about $900; that affiant does not know where any of this money came from or whether or not MacDonald had other or greater sums.
Conclusions of Mr. Justice SEAWELL.
Several justices of this court have set forth with considerable detail quite a number of the many facts and circumstances developed by a mass of evidence including hearsay, opinion evidence, and advisory suggestions offered by persons who are not charged with responthat petitioner, Warren K. Billings, by the that petitioner, Warren K. Billings, by the proceedings instituted by him, is not entitled to a written recommendation of a majority of the justices of the Supreme Court. Article 7, § 1, State Constitution. In short, he has not met the burden which the law has placed upon him. The Constitution imposes upon the members of this court a distinct duty, which must be unflinchingly met by every member of the court, and which cannot be passed on to the Governor of the state, to the end that, by recommending a pardon, we are merely untying the hands of the Governor and permit him to freely exercise the general functions of the power of pardon. Such is not the law of the state, and no member of this court has the legal right to recommend the removal of the constitutional restriction unless he, as Governor, would grant the pardon. To argue that the matter should be passed on to the Governor without a definite conclusion in our minds that a pardon should be granted in order thath the Governor may act ad libitium, or as he may be otherwise advised, is to beg the question and argue in favor of judicial nullification of a state constitutional provision. To assent to petitioner’s request the members of this court must find that the petitioner was convicted upon the testimony of perjured witnesses alone, and that there was no evidence sufficient, standing by itself, or aided by inferences, presumptions, or any methods by which the mind may reasonably arrive at a safe conclusion.
[210 Cal. 774] This case was tried more than fourteen years ago, and petitioner now comes to us for the first time, asking that he be recommended for a pardon. At a time when it was fresh in the minds of its generation a new trial was asked, and the courts of this state several times, with much care, examined into the sufficiency of the evidence educed to sustain the judgment and such alleged errors of law as were then presented. At this remote period it is claimed that practically all of the witnesses upon whom the state relied, in whole or in part, who connected the petitioner with the Preparedness Day bomb explosion, were either wicked perjurers, or that their stories were but figments of the mind, or that their senses of perception distortedly recorded the things which they claimed to relate. That Billings was at the dental office described, with a suitcase corresponding in general appearance with the one that contained the bomb, has been established by testimony that has not been explained, away, even by Billings himself. Estelle Smith’s unshaken identification of Billings cannot be lightly set aside. The physical marks which he bore, one upon the forehead and the other a crumpled thumbnail, together with the description of his appearance, and her subsequent identification of him without opportunity of being assisted in her identification, would be a marvelous exhibition of occult powers if her story in this respect is not true. Billings’ apparent mental perturbation, as described by her, might well be expected of a person who had in his possession a bomb timed to explode within a short period of time. Memory as to the exact time when she saw Billings depart with the suitcase, or as to the order of his departing with reference to the arrival of the mayor at a nearby point on Market street, would not ordinarily associate the two events and make note either as to the time or order. The testimony as to Billings being at the hallway leading into the dental office and its apartments in the circumstances related, corroborated as it was, may well be accredited by examiners of fact. There is also the testimony of other witnesses that he made his way to the place where the bomb was to be exploded, and into the plan and journey thither here and there come glimpases of several persons who were known associates of Billings, sympathizers of the movement to suppress the parade. The motive and purpose of the persons [210 Cal. 775] in placing the bomb was a legitimate and important factor in connecting the perpetrators with the crime and cannot be set aside. Deductions from facts are warranted by a consideration of the usual propensities or passions of men, the particular propensities or passions of the persons whose act is in question. Section 1960, subd. 2, Code Civ. Proc.
Witness Macdonald, who went through the vehmence of four or five grueling trials, told and retold his story that remained unshaken in the main, which was sufficient in its convincing force to have gained the credibility of judges and juries, now comes forth from his uncanny abode, influenced by some motive or purpose, to repudiate the identification he formerly made of the petitioner and his alleged coassociate in the crime. His efforts to impeach his former testimony and many of the statements corroborative of its truthfulness at times, in places and in circumstances, which would seem to ring the truth from the most wretched of mankind bears the palpable fabrications of a man who had succumbed to a long siege made upon his honer, rather than the triumph of a long-burdened soul in casting off its perfidious load. It seems incredible that, with all the opportunities of demonstrating its falsity, MacDonald, possessing neither wit nor cunning, in the circumstances of searching trials, confronted by the officers of the law and their investigators who were in search of truth, could have accounted for his presence and movements and the identification, presence, and movements of petitioner and his associate, purely upon the theory of imagination. No one who heard him would give credence to his testimony in which he accused others in his attempt to completely stultify himself as a witness in said trial. There is nothing inherently improbable or unreasonable in his testimony at said former trials, which in some of the details is corroborated, nor was his reputation at that time subject to impeachment for the want of truth, honesty, and integrity. With a better opportunity of scrutinizing MacDonald and his testimony given fourteen years ago by those who heard it than has been given to any tribunal since, there appears to be no sufficient reason, in the light of the things that have since happened, including the admitted means and methods which have been constantly employed to bring about a change, for [210 Cal. 776] accepting the inherently improbable and obviously false testimony of a man who has been overreached and rejecting his testimony repeatedly given at times when his character for honesty was not challenged, or the temptation to forswear himself had seared his soul. If the rules which ordinarily govern human action are to be regarded in consideration of this matter, it is less difficult to credit MacDonald’s former testimony than it is to reconcile his belated repudiations thereof with an honest desire to undo, as far as he may, the immedicable wrong. Neither his weird story nor cringing manner carried conviction to the mind. This being so, should it be said that the things that have destroyed the most sacred attribute of man be given retroactive effect to blacken and destroy all of life that has gone before? If such be the rule, there would be no safety in conclusions or judgments formed upon human testimony, even though the witnesses be persons of probity, until the final chapters of life are recorded and its errors noted. Such a rule would not only contradict the experiences of life, but it would unjustly discredit acts which, but for later lapses in life, could not be questioned. This would be an unfair test to apply to past probity. It is MacDonald’s present effort to discredit himself absolutely. This he feels he must do so thoroughly that it shall be said of him that his iniquity and wickedness completely consumed him and there was nothing good in him from the beginning. If he was of the type of monster which he would now have us believe him to be, his mild manner and inoffensive nature at no time theretofore betrayed the vicious tendencies which he would have us believe lurk beneath and which are not easy of disguisement. It was the duty of former courts to determine what manner of man MacDonald was in the circumstances of the situation as then presented, and their finding as to his credibility in the issue then presented preponderates over anything that has been presented in the instant proceeding which tends to his undoing. This being so, we would not be justified in vitiating the judgment regularly recorded against petitioner after full investigation of his connection with the crime charged against him. We do not mean to say that a judgment improperly recorded against a person charged with crime should be permitted to continue effective, but we do say that, where a judgment is assailed on the [210 Cal. 777] ground that it was procured by fraud, mistake, or upon any other grounds than lawful or just grounds, the defendant should be required to show by reasonably persuasive evidence the facts upon which he relies to overthrow said judgment. Unless this rule be observed, there would be no protection in judgments which might be assailed long after important witnesses, or those who could have been called as witnesses, have died, or left the state, and public interest has subsided with passing years, notwithstanding the concern that society may have in its protection against the criminally disposed.
In passing it may be observed that the testimony given by MacDonald at the former hearings is by no means all of the evidence of an incriminatory character which was educed against petitioner at the trial, however earnestly the contrary may be asserted. Practically every witness who was called by the prosecution has been charged with the commission of some crime or irregularity of conduct. The private records of numerous witnesses have not escaped close inspection. In a number of instances acts brought to light do not go to the truthfulness, honesty, and integrity of said persons, but to such lapses or errors which cast their shadows upon character, but because of which the wrongdoer should not be outlawed as an unbelievable person where his or her weaknesses or errors do not involve traits which directly affect credibility. In criminal cases it not infrequently happens that the law must consider the testimony of witnesses who are badly tarnished by contact with crimes. But the fact that they are so tarnished does not relieve the investigators of fact of the duty to endeavoring to search out the truth, believing where the testimony in whole or in part convinces the understanding and disbelieving where it fails. It is the law that the jury may believe the whole or a part of the testimony of a witness or disbelieve him or her in toto as it may be convinced of the truth or falsity of such testimony, or it may reject it entirely. Such are the instructions that are given to every jury in the trial of criminal cases, and it not infrequently happens that convictions are obtained in cases where the moral standing or, indeed, the integrity, of a number of witnesses is admittedly unsavory. This unpleasant but not unusual spectacle affords [210 Cal. 778] no excuse for a refusal to carefully scrutinize the evidence and act upon it if it carries convincing force. The important question after all is, Is the evidence believable? This court is not permitted to override the laws of appraisal of the credibility of witnesses who pass the test in a proper forum.
Petitioner was brought before us and interrogated over a period of approximately three hours. It does seem that he did not exhibit the frankness and open-mindedness that might be expected of a man who had no connection with the commission of a crime of which he stands wrongfully convicted. The suggestion that his failure to account satisfactorily for his whereabouts on the day of the explosion was prompted by the fact that it would have required him to reveal his activities in the commission of other offenses of a most despicable character is not persuasive in view of the great disparity as to penalties existing between the crime he actually committed and the crime he was suspected to have committed. The latter carried with it a possible death penalty.
The testimony has been reviewed quite extensively, and has been fully considered by this court in its many conferences. Before I feel justified in joining in an order recommending a pardon and thereby annulling the judgment of the several courts which have considered petitioner’s case, there are a number of incriminatory circumstances and considerable evidence that must be explained away. No satisfactory explanation has yet been made. This being so, I cannot find myself able to recommend that a pardon be granted petitioner.
EMMET SEAWELL, Associate Justice.
Conclusions of Mr. Justice SHENK.
To His Excellency the Governor of the State of California;
Dear Sir: In connection with other reports which have been prepared for submission to you, I desire to emphasize certain phases of the matter which particularly appeal to my judgment.
Any proper approach to the problem obviously requires a consideration of the application on its merits, and on the [210 Cal. 779] evidence presented, uninfluenced by extraneous considerations. In arriving at a conclusion, I am impelled to adhere to the well-recognized standards in the ascertainment of facts in the administration of justice. Although the matter before us is not strictly a court proceeding, I am convinced that, in the ascertainment of the facts, our function is to some extent judicial in character. In other words, in arriving at a conclusion, the evidence presented should be considered, not in accordance with what one might desire it to establish, but in accordance with what it does establish. It was stated at the hearing by one of the principal witnesses that everyone, including the judge, believes what he wants to believe. That statement cannot be true when applied to a public officer charged with the responsibility of deciding a question of fact as between individuals or between an individual and the state. A judicial officer, acting as such, is bound to decide on the evidence presented, and may not decide in accordance with his personal wishes or predilections in the premises. The evidence before him, tested by the rules resulting from the universal experience of mankind, is his guide. Otherwise, the administration of justice would be a government of men and not of law.
I desire to accentuate the position taken by six members of the court on the former hearing of this application and now maintained, viz. that the proceeding before us is not a retrial of the case of The People v. Warren K. Billings. I challenge as unsound the view expressed by some that the duty of the justices, in acting upon this application, is to determine whether the applicant has been proved guilty of the crime with which he was charged. The applicant has been proved guilty of that crime in the trial at which he was convicted. On that trial the applicant was clothed with the presumption of innocence, and the burden was on the people to prove his guilt beyond a reasonable doubt. Concedely he was accorded a fair trial, and on appeal the evidence was declared to be abundantly sufficient to support the conviction. The applicant now stands before us a convicted felon unsupported by the presumption of innocence. The presumption of guilt is now against him. The burden has been and is cast upon him to establish either that he is innocent, or that, notwithstanding his conviction, he [210 Cal. 780] is entitled to a pardon. In support of his claim of innocence we have his plea of ‘not guilty’ and his later insistence that he did not commit the crime. As against this claim is the record of his conviction after a fair and impartial trial in which he was adequately represented by counsel and protected in all of his legal rights. This conviction must stand unless there is sufficient evidence before us that, notwithstanding the judgment, he is entitled to go free.
The applicant has endeavored to prove that he was convicted by the perjured testimony of witnesses who appeared against him at the trial. From time immemorial it has been the law of the land that such perjury must be met at the trial. But, in our consideration of the application, we have swept aside that rule of law and have fully and freely heard testimony the effect of which is claimed to prove that certain witnesses at the trial were false to their oaths or were honestly mistaken. The showing in this regard consists in the main of affidavits signed by witnesses purporting to repudiate their former testimony. On the prior hearing of this matter we were foreclosed from any information as to the circumstances under which those affidavits were made. We now have that information which discloses that they were obtained on behalf of the petitioner under influences and by means which entirely destroyed their credibility. The circumstances attending their execution are set forth more at length in other reports submitted to you. There is no evidence before us sufficient upon which to base a conclusion that the witnesses who made those affidavits were subjected to any improper influences or suggestions or that they were honestly mistaken at the time they testified at the trial.
In my judgment an impartial consideration of all of the evidence before the justices, tested by the rules universally applied to the ascertainment of facts, compels the conclusion that the applicant has fallen far short of the burden assumed by him to overthrow or discredit the record of his conviction or to establish that he is otherwise entitled to a pardon. I must therefore join in withholding a favorable recommendation.
JOHN W. SHENK, Associate Justice of the Supreme Court.
[210 Cal. 781] Dissenting Report by Mr. Justice LANGDON.
Considered either as an argument of an advocate or as a judicial review of the evidence, the consolidated majority report is unsound and indefensible. It is unsound because its conclusions are not founded upon established facts. Suspicions, conjectures, unwarranted inferences, irreconcilable inconsistencies, and admitted perjuries are treated as facts. It is indefensible because it appeals to passion and prejudice. One-fourth of the report is devoted to anarchistic propaganda and the bad character of the petitioner. The trial court properly held that these matters were not admissible. It is manifestly improper to inject them into this inquiry. It may be admitted that Billings was a most undesirable citizen. He says so himself. To some people this may appear to be abundant reason to leave him where he is. A judicial officer, bound by oath to secure for any person accused of crime a fair trial, must be immune from any such suggestion. Our duty is to determine, uninfluenced by passion or prejudice, whether Billings has been proven guilty of the crime with which he is charged.
I do not know whether Billings is guilty or innocent of the crime with which he is charged. I do know that there has been a failure of proof to such an extent that there is now not even the semblance of a case against him. Upon the record now before us a recommendation for executive clemency cannot justly be withheld. In that record the indispensable witness is John MacDonald. Irrespective of what influences caused MacDonald to testify as he did in the original trial, his testimony must now be discarded as a factor in the case, for MacDonald is so thoroughly discredited as to be absolutely unworthy of credence. His word is worthless for any purpose. I am supported in this view by Capt. Goff. In a letter recommending a pardon for Mooney he referred to Oxman and MacDonald as ‘the two vital witnesses,’ and said: ‘If I were a juror sitting in the case I would not in my present frame of mind consider their testimony for a single minute when a human life was being weighed in the balance.’ As in the Mooney Case, so in the Billings Case, the testimony of MacDonald is of vital [210 Cal. 782] importance. With him discredited, the chain of proof is broken, and the case against the petitioner falls.
It was this elimination of MacDonald as a credible witness that prompted Capt. Matheson and former Deputy District Attorney Brennan, who prosecuted Billings, to recommend a pardon for him. It was for this same reason that such recommendations were made by trial jurors. The opinions of these men on the effect of MacDonald’s testimony are entitled to great weight. They know more about the conduct and the merits of the case than we can ever learn from our reading of the record. I deem their statements of the highest importance, and I cannot understand the failure of the majority to give them their proper consideration.
This case hinges on the identification of Billings. MacDonald is the identifying witness. The first identification made by MacDonald was in his statement to the police. In that statement he gave a detailed description of the men whom he claimed to have seen at Steuart and Market streets. It is absolutely impossible to recognize Mooney or Billings in either description. No officer could have arrested them and no district attorney could have prosecuted them in reliance upon that statement. It is significant that this identification by MacDonald of two unknown persons is in complete accord with his testimony at the hearing which has just been concluded. It is equally significant that this first statement was never presented in any court, and appeared for the first time in the hearing before us. Its production would have challenged any subsequent identification. Tested by this statement, the incidents of the ‘Rogues’ Gallery’ book, and the trip through the jail lose their importance. For the more convincing his later identification appears, the less credence can be given it, in view of his earlier statement. That statement nullifies his testimony. When fairly considered, the bottom drops out of the case against Billings.
MacDonald’s testimony, moreover, cannot be reconciled with the established fact that Mooney was on the Eilers building from 1:58 p. m. to 2:04 p. m., as shown by the photographs of the building and the street clocks. According to MacDonald’s testimony, Mooney and Billings were [210 Cal. 783] together at eight or ten minutes before 2 p. m. at Steuart and Market streets and left about 2 p. m.; Billings crossing Market street and proceeding in the direction of the Embarcadero, and Mooney going in a northwesterly direction. The justices of this court, since the hearing, on their own initiative conducted an exhaustive investigation of the photographs relied upon by the defense, in order to determine whether they had been tampered with. The report of the experts, who checked the time shown on the clocks pictured therein against calculations based upon the lines of certain shadows on the building, definitely establishes the authenticity of these pictures with respect to the time indicated. The majority opinion has absolutely failed, as have all witnesses and officials connected with this case, to reconcile MacDonald’s testimony with the evidence of the clocks. It cannot be reconciled, and for this reason MacDonald’s testimony cannot be true.
No other witness connects Billings with the crime. The only other persons who place him near the scene of the explosion are Crowley and Oxman. Crowley has Billings and another man at 1:55 p. m. on Steuart and Mission streets, headed south toward Howard street. Oxman has Billings, Mooney, Mrs. Mooney, and Weinberg coming to the scene in an automobile, placing the suitcase, and leaving in the automobile. Disregarding for the moment the charge that Oxman was a perjurer and suborner of perjury, and that Crowley has a criminal record, and taking their testimony at its face value, what is it worth? Nothing at all. If Crowley told the truth, MacDonald lied; if MacDonald told the truth, Crowley lied; and if Oxman told the truth, both of the others lied. If any doubt exists as to the value of Crowley as a witness, it is dispelled by the action of the prosecution in abandoning him after the Billings trial.
I might stop with this consideration of the evidence were it not for the exaggerated importance which has been given to the testimony of Estelle Smith. Without delving into the police record of this irresponsible woman, it is sufficient to point out, first, that she repudiated her original testimony in an affidavit signed on March 19, 1929. At the hearing before us, she was contradicted on material matters by the witnesses Fickert, Brennan, Matheson, Goff, and [210 Cal. 784] Older. I can well understand why she, too, was abandoned by the prosecution as a witness in the trials subsequent to the Billings Case. No district attorney, discovering her true character, would use her as a witness. Her credibility is as completely destroyed as that of MacDonald.
All of the other witnesses at 721 Market street have either repudiated their testimony, or have been challenged by contradictory evidence, or have, as in the case of MacDonald, been discredited when their testimony was considered in connection with established facts.
The requirement of the majority that the petitioner prove his innocence, either by establishing an alibi or by identifying the perpetrator of the crime, is unreasonable and unwarranted. A perfectly innocent person may be unable to prove an alibi. And it is preposterous to demand of the accused that he place his finger upon the real culprit in order to exculpate himself. Although Billings has presented an alibi, it is unnecessary for us to consider it. When the chain of proof is destroyed, he needs none.
Nor am I now interested in the charge of frame-up. It has been eliminated from the issues, and it would be improper to discuss it. This charge rests largely upon the statements of Estelle Smith and John MacDonald, and there is doubtless no more reason to believe their accusation against officers of the law than their testimony against the petitioner.
I am equally unconcerned with the activities of those individuals and organizations that have interested themselves in the release of Mooney and Billings. Whether their actions are subject to the criticism made in the majority report is a matter which does not affect the guilt or innocence of Billings. MacDonald stands discredited by his own first statement to the police and by the evidence of the photographs, and it is unnecessary to rely upon his repudiation.
The justices of this court are given no pardoning power by the Constitution or statutes of this state. That power rests with the Governor, and may be exercised by him for reasons of his own. Proof of innocence has never been an essential requirement for its exercise. It cannot be required as a condition to a recommendation which is itself not final. If we find that there has been a failure of proof of guilt, it is proper for us to make the recommendation on that [210 Cal. 785] ground. Our task is then ended. The Governor is then free to act as he may desire. The majority report leaves the hands of the Governor tied. Unless and until the Constitution of the state is amended, or three justices of this court change their views, the Governor is powerless to consider petitioner’s application, irrespective of his own views of its merits.
WILLIAM H. LANGDON, Associate Justice of the Supreme Court.