The Sunday Oregonian., April 05, 1908, SECTION FOUR, Page 10, Image 46

1(T
THE SUNDAY OREGONTAX. PORTLAND, APRIL, 5, I90S.
BANKERS GRANTED
CHANG
E OF-WE
HUE
J. Thorburn Ross and Associ
ates Will Be Tried in
Marion County.
OPINION IS NOT UNANIMOUS
Jude O'Day Dissents From Three
Other Jurists, Declaring That
Fair Hearing Could Be
Had In Multnomah.
J. Thorburn Ross and his fellow offi
cials of the Insolvent Title Guarantee
& Trust Company -will not be tried In
Multnomah County on the felony
charges growing out of the alleged
wrecking of the bank. Change of
venue to Marlon County was granted
Boss yesterday afternoon by the State
Circuit Court for Multnomah County.
The order Is applicable to the similar
charges against T. T. Burkhart, John
E. Altchlson and George H. Hill.
The change was not granted with
the unanimous consent of the circuit
judges of this district. Judge O'Day
dissenting from the opinion concurred
In by Judges Clfland, Gantenbeln and
Bronaugh. In a remarkable summary
of the case and of his reasons for re
fusing to assent to a change of venue,
Judge O'Day takes a subtle fling at1
the practice of Individuals and cor
porations in taking advantage of loop
holes afforded by the law In delaying
trial. He Is unable to find any justi
fication of Ross' claim that an Im
partial and entirely fair trial could not
be had In this county.
Xo'comment on Killing.
. ' The order granting a change of
venue was issued by Presiding Judge
Cleland without comment or the hand
ing down of any opinion. He merely
announced from the bench that the
Change would be allowed. Judge O'Day
saying Immediately afterwards that he
did not concur In the decision. His
attitude, however, does not directly
affect the case, and the change will he
made at once. District Attorney Man
ning insisting that there be no delay.
The proceedings attendant on grant
ing the change occupied less than five
minutes. At 2 o'clock Mr. Manning ap
peared for the State with Attorneys
McC'aniant and Simon present in Ross'
Interest. Judge Cleland presented the
decision at once.
"In the case of the State of Oregon
versus Ross. In which a motion for
a change of venue has been submitted
and taken under advisement by the
court, 1 reached the conclusion that the
change ought to he granted," Judge
Cleland said. "All the cases will be
transferred to Marion County."
O'Day Hies Written Opinion.
Judge O'Day at once, stated his op
position. "Owing to the fact that no
opinion has been filed," he said, "I de
sire to say that I dissent from this rul
ing and will file with the clerk a
written statement giving my reasons
for dissenting."
Mr. Manning then arose to say that
he wanted the records made up at once
so that the case can be transferred
without unnecessary delay. Later he
filed a paper announcing his purpose of
filing a motion on Monday asking that
Instructions be given the clerk of the
court to the effect that the motion for
a change of venue and the exhibits at
tached thereto Is not a part of the pro
ceedings or the original papers to be
transferred.
Fifteen minutes after the motion for
change, of venue had been allowed
Judge O Day presented a typewritten
statement of his reasons for not con
curring. His statement Is in many re
spects a masterly summary of the situ
ation. In which Judge O'Day makes al
lowances for changes in modern so
ciety and defends the average juror.
He scouts the Idea that the Title Guar
antee & Trust officials could not re
ceive a fair trial lure and, in calling
attention to the fact that the motion
for change of venue is based Jargely
on articles printed in the newspapers,
suggests t!:at residents of other com
munities possibly read newspapers, the
modern medium for the dissemination
of news. Judge O'Day's statement in
full Is as follows:
On account of the difference of opinion
upon the motion for a change of venue
between myself and my associates, and
entertaining the views I do. I regret to
say that I am compelled to dissent. This
motion is based upon the ground of pre
judice among the people in Multnomah
"ounty to such an extent that the de
fendant cannot procure a fair and impar
tial trial to pass upon the facts In this
case. The evidence submitted here to
support that contention is largely based
upon the attitude of certain daily papers
In regard to the publication of facts or
alleged facts, following the failure of the
Title Guarantee & Trust Company, with
which the defendant was connected. It
1s said that the prejudicial statements
have been made in these papers; certain
facts have been alleged therein; that the
defendant is Innocent, but the assertions
In the papers are to the effect that he is
Kuilty. and that this idea has become
generally accepted In the community,
and the defendant cannot have a fair
and impartial jury for this reason.
It goes without saying that the de
fendant in a criminal action is entitled
to a fair and Impartial trial. This is a
constitutional guaranty that stands at
the threshold of every court, and when
ever it sufficiently nppears that such a
triid cannot be had. it is the Imperative
duty of the court ,o grant a change of
venue. But no such condition exists in
this case, at least there is no evidence
to warrant such a conclusion. It Is true
there are the affidavits of certain indi
viduals here, expressing rnelr opinions,
but there has been no attempt to secure
a jury In this case. There are submitted
affidavits of persons equally creditable
that a fair trial can be had. It has not
been demonstrated by persons actually
called to try the defendant that they have
jdiown any prejudices. The conditions
are not here as they were In the Old's
case, 19 Oregon 39". where two trials had
been had. but. as I have stated, the sub
stance of the allegations i.s that the peo
ple read the newspapers, and as a residt
of this had become prejudiced.
Same Conditio ! Other Counties.
When a change of venue is had. it be
comes an Imperative duty of the court
to transfer the case "to the nearest
county where a fair and impartial trial
can be had." In the first place, there is
no evidence here that in any county to
which this case should he transferred
the same conditions do not exist, viz. :
that the persons who are liable to be
called as jurors do not read the daily
newspapers. 1 do not think the court
can assume that they do not do so. and
if they do. the same condition of mind
would exist among those persons that
exists anions the persons to be
called as jurors In Multnomah County.
It is also said there are large numbers
of depositors, but it does not appear that
these depositors are persons eligible to
serve as Jurors, and the probability is
that a very large number of them are
not; or does It appear what proportional
number of these depositors are within
Read What One of
Our Kids Says About
Lennon's Store
Now is the time to buy your Eas
ter Gloves, Hosiery and Parasols,
to match the shade of your Easter
gown, hat, or whatever it may be.
and by coming to Lennon's you
can get the very latest shades
also the verv lowest prices on
Gloves, Hosiery and Parasols. Note the follow
ing prices and then you will be convinced that
Lennon's is the right place to get Groves, Hosiery
and Parasols:
Elbow length washable
chamois. 1 OC
13.00 value OZiU
Wide top, 8-button
length pique kid Gloves,
li.u.e:. $2.50
Klbow length pure lisle
Gloves, $1.25 . re
value fUu
Elbow length Lennon's
penulne Kassan Cap
Gloves. $4.00 fro OR
value OZitJU
Blgf assortment of la
dies' lace and colored
Hosiery, the very latest
patterns, 85c Cflft
value uUU
Ladies' fast black and
tan Hose, 40c OCft
value Zwu
Children's tan and fclaid
Socks. 40c 'iC.
value Uu
I Large assortment of
Parasols, from 50c up.
dLennoris
1
309 MORRISON ST- OPP. POSTOFFICE
Multnomah County, though it may be as
sumed that most of them do so reside.
It is not claimed in this case that the
persons who happen to be the judges of
this court are prejudiced so that they
could not give the defendant a fair and
impartial trial. In fact, the whole
theory of this prejudice In the community
arises from the fact that there is some
kind of a popular belief among lawyers,
and presumably also among the judges,
that jurors are predisposed to be effected
by those things that do not affect law
yers or judges.
To this proposition I do not give my
assent. There are certain interests, and
especially to representatives of those par
ticular interests whose property largely
consists in the capitalization of special
privileges in the form of franchises, etc.,
who constantly seek to instill in the
minds of lawyers from the time the law
yer enters the law class until he after
wards becomes a judge, that the average
citizen who is eligible to sit as a juror
will enter a jury box with a predisposi
tion unjustfully and wrongfully to take
from those who have and to give to those
who have not.
Denlen Jurors Disponed to Be In Just.
It rarely enters the mind of any lawyer
or judge that he would be affected by
this disposition, but it is the sentiment of
many lawyers, as I have said, and pre
sumably some judges, that this is true,
viz.: that a juror is unjust; that they are
against corporations, and, as I have said,
that the predisposition exists not to be
fair and impartial. For that reason it
is assumed they are affected by the
newspapers. Of course, no lawyer or
judge will admit that he is so affected.
That is a matter that applies usually to
the citizens who happen to be eligible to
jury duties; or to what is termed the
"rabble," or the "mob," and usually
when one refers to the "rabble" or the
"mob" he always includes every other
person except himseif in that category.
SAM I' EL ACKLEY. I
: ' 1 ' i
Pioneer of Lewis County.
WINLOCK. Wash.. April 1.
(Special.) Samuel Ackley, an
old pioneer of Lewis County,
illn at bts home three miles
east of Winlock. Monday morn- t
In?. He was born in Genesee I
County, X. T.. May 10. 1827. He J
was married to Miss Almira M.
Clark at Chelsea. Mich., April
30, 3S5S. With his wife he
moved to Hillsboro, Or. in
1871. and from there to- Win
lock in 1S81. He was the
father of 13 children, nine of
whom are living: Mrs. Carrie
McLeod. of Chehalis; Mrs. Clara
Freeman. Xorth Yakima, Wash.;
M. D. Ackley. Pan Quentin, Cal.:
Miss Jennie and Messrs. John,
George and Byron Ackley, and
Mrs. Willis Champ, of Winlock;
and Rodney Ackley, of Mabton,
Wash.
His wife died at Hillsboro,
Or., In 1876.
.
where I had reason to be dissatisfied with
their verdict." And further, in speaking
of a jury, says: "Its shortcomings are
not inherited. If Judges will do their
duty, jurors will do theirs." Instances
might be multiplied by those most com
petent to Judge that this assumption that
jurors are affected differently than law
yers or Judges by newspapers is an er
roneous conclusion and not true in fact.
Courts and lawyers are conservative.
The basic idea and principle of the
comfnon law is precedent, and precedent
Is based upon customs so long In vogue
that "the memory of man runneth not to
the contrary." Hence the disposition of
courts and lawyers is continually looking
in the direction of the setting sun of the
pust. rather than to the horizon of the
future. This conservatism ought not to
be such as to prevent the courts recog
nizing the progress of society. To say
upon mere conjecture that jurors will be
affected by the recital of the facts aris
ing in the community In the newspapers
and. therefore, that the defendants herein
could not get a fair and Impartial trial
Is an assumption that is not warranted
by the experience of mankind. And the
courts ought to practice a conservatism
in this regard, but detract from the wise
administration of the law so as to pre- t
vent that administration from being an
aid and help to society.
Newspapers Part of Society.
Newspapers, courts and churches are
all a part of society. And in allowing
this motion a precedent is set by which
any person may seek a change of venue
from the place where trial by law is re
quired to be had, merely because the
newspapers are recording the events of
the day by publishing the daily trans
Tbe fact is, however, that this Is an age
of wireless telegraphy, telephones and
newspapers, and the average citizen
wants to know today the principal events
that happened in the world yesterday.
The newspapers are the medium for the
dissemination of this news.
In my opinion, this- idea that jurors
are predisposed to be unjust Is wrong in
theory and untrue in fact. Judge Dillon,
who is the peer of any lawyer living, in
his book, "The Laws and Jurisprudence
of England and America," page 122, says:
"I have tried literally thousands of cases
with juries, and the instances are few
actions happening In the community. As
I said, if it should be shown that In any
particular case such local prejudice ex
ists, that a fair jury cannot be obtained,
there is no doubt that a change of venue
should be granted; but the attempt to get
a jury ought at least to be made, or at
least It ought to appear differently than
the mere opinion of certain persons as
expressed in this particular case. Mult
nomah County contains a large percent
age of the population of the state, and I
believe that the defendant could have as
fair and impartial a trial in Multnomah
County as he can have in any other part
of the state. For the reasons herein
stated, this motion for a change of venue
should be denied.
MAXXIXG SORRY OF CHAXGE
Trial at Salem Will Cost Multnomah
County $10,000 to $15,000.
District Attorney Manning last night
was asked what he thought of the action
of the court in granting the change of
venue, and said:
"I am sorry that the court granted the
change of venue in the Ross-Burkhart
case. I could see no reason for chang
ing the venue. I believe the citizens of
Multnomah County are capable of giv
ing any "man a fair and impartial trial,
no matter what the defendant may be. ac
cused of, and it would be a sad com
mentary on our citizenship if such were
not the case.
"I am glad, however, that the court did
not send the case to some Isolated county
in this state where there would be no
term of court for from six to eight
months, as I am sure we can try the
case in Marion County some time during
the present month. I talked with Dis
trict Attorney McNary, of Salem, by tele
phone this afternoon, and he tells me
there will be no trouble in getting the
case set for trial.
"I sincerely hope that the defendants
will not be permitted to file any more
motions which would only delay the trial
of the cause. I will have the transcript
prepared Immediately and filed with the
Circuit Court of Marioh County within
the next two or three days and will then
Immediately ask to have the case set
down for trial and my witnesses sub
penaed." When asked what would be the expense
to Multnomah County by reason of try
ing the case In Marion County, Mr. Man
ning said:
"There are three or four cases to be
tried and the probability Is that it will
cost the county $10,000 or $15,000, which Is,
In my judgment, an unnecessary expendi
ture, as the case could be tried In Port
land without being one dollar out for wit
ness fees, because In criminal cases a
witness is not entitled to fees unless he
will have traveled more than two miles.
But by trying the case in Marion County,
the taxpayers of Multnomah County will
have to stand the expense of mileage .for
witnesses, together with a per diem of J2
for their services while detained by the
trial. It will be my intention, however,
to shorten the case as much as possible
and try it out this month."
PLEAD WITHOUT APPEARING
a
Robert Baker and Belle Davis Deny
Felony Charge.
Robert Baker and Belle Davis, charged
with felony, pleaded not guilty in the
State Circuit Court yesterday afternoon,
without appearing in court or undergoing
the formality of arrest. Having learned
that they had been indicted hy District
Attorney Manning, the two sent their
lawyers, Alex Sweek and A. Walter Wolfe,
into court to plead for them. Efforts to
locate, and arrest them, previous to this
time, had not been successful.
Their means of submitting to arrest
through their attorneys and answering
to arraignment without being in court
was rather an unusual one. Their plea
of not guilty was duly received and the
case will be set for trial on Monday, so
Judge Cleland announced.
CLERKS MISTAKE IS COSTLY
Miss A. I.. Carroll Awarded Dam
ages for Confiscated Ticket.
The Oregon Railway & Navigation Com
pany will have to pay Miss A. L. Carroll
the sum of $250 because one of Its ticket
agents made a mistake. The agent In
Open
an A
rowers
The season of improvement and betterment of the home is here, and diligent housewives
are looking to the needs along that line, perhaps only a portion of which can be gratified.
If not to refurnish the home as you would desire, we believe we can direct the way,
with our unlimited stock of general housefurnishin'gs, to make the more important im
provements well within the means at hand. Complete, or in part, we can furnish what
, , '. . you desire at prices that cannot be other than satisfactory.
DIGNIFIED CREDIT FOR ALL
Remember that our dignified credit system is at your disposal. A few dollars down
and a dollar or two a week will do.
iliilffi
i ,rn ; sr wm i mil .
mmm
f D
n
fe
IB I
1
Jiii
IP
China Cabinet in quarter-sawed
oak, bent-glass ends,' C01 Cfl
finished eolden; price.
Oak Morris Chair, in weathered
or golden finish, loose cushions,
made in corduroy or pretty fig
ured velours; priced QQ
Special Terms: $1.00 Down,
$1.00 Week.
Mission Rocker in saddle seat,
weathered or golden tfQ ff)
finish; price ....." J
Special Terms: $1.00 Down,
' $1.00 Week.
Special Terms: $1.00 Down,
$1.00 Week.
JEWEL
STEEL RANGE
An Elegant Range With
No Equal
The Jewel Steel Range
is most attractive in de
sign and ornamentation,
compactly built, and op
erated entirely from the
front. Body is made of
heavy, blue planished
steel, which will not
chip, , peel, rust or turn
white when heated. Riv
ets are cone-h e a d e d ,
driven cold, by hand.
The walls are lined with
asbestos to prevent
radiation of heat into
the kitchen, and to econ
omize fuel.
Hardwood Chiffonier, m a d e of
thoroughly seasoned material
oval French bevel mirror: white
maple, golden and ma-ti l Cfl
hogany finish ; price . . "
Special Terms: $1.00 Down,
. $1.00 Week. .
JEWEL
STEEL RANGE
Most Attractive Range
on the Market
Has a large, quick-balding
oven, heated evenly
with smallest possible
amount of fuel, and well
protected by cast plates.
Will bake perfectly on
the rack as well as on
the oven bottom. Oven
is of wrought steel, full
size, broad, deep and
high. Bottom made in
sections to prevent
warping.
Fifteen-Year, Guarantee
Carpet Department Specials
8 patterns 9x12 feet Axminster Rugs special... $24.75
6 patterns 9x12 feet Wool Velvet Rugs special $22.75
5 patterns 8 ft. 3 in. by 10 ft. 6 in. Wool Velvet Rugs sp'l.$18.75
10 patterns 8 ft. 3 in. by 10 ft. 6 in. Tapestry Brussels Rugs
special $13.25
5 patterns 9x12 feet Smith's Velvet Rugs special ....... .$2,9.50
7 patterns 9x12 feet Fiber Rugs, special S11.65
Royal Axminster Carpet, per yard S 1.44
Hartford Brussels Carpet, per yard S 1.22
Amber Velvet Carpet, per yard $ 1.15
Lakeside Brussels Carpet, per yard 80
Nonpareil Half-Wool Ingrain, per yard - ,. . . . 67
Park Mills All-Wool Extra Super. Ingrain, per yard....... JH)
"Heywood" Go-Cart, reed body
upholstered s e a t and back;
heavy rubber tire
wheels; price. . . .
Special Terms: $1.00
$1.00 Week."
$11.50
Down,
"Heywood Baby Carriage
Body-is made of -finest German
reed and is upholstered in cor
duroy; ' Jace parasol, eushion
rubber tire - wheels; 50
Special .Terms : "$1.00 Down,
SI. 00 Week.
question, whose name does not appear,
was approached by Miss Carroll, who
asked him to have her return ticket
to Port Dodge, la., validated. He sus
pected her of being other than the original
holder of the ticket, .confiscated her trans
portation and appropriated for his com
pany the sum of 50 cents, which she had
tendered for validation of the ticket.
Miss Carroll took her case into court
and it was decided yesterday afternoon
by Circuit Judge O'Day. The court di
rected that the company pay the young
woman $250 as compensation for lacerated
feeling's in having her ticket taken away
from her and in addition to furnisher her
transportation to Fort Dodge.
The incident forming the basis of the
action occurred two years ago, when Miss
Carroll was here as a delegate to the
Christian Endeavor Convention.
COI;T RECEPTION FOR HI SBAND
Shanz Declares Wife Struck Him
With Beer Bottle. .
Arthur A. Shanz says he found his wife,
Evelyn Shanz, out with another man
when she should have been home tending
the baby- According to his story, he
entered a room where they were enjoy
ing beer tete-a-tete. His reception was
not enthusiastic. She cursed him and to
add emphasis to her views of his intrusion
on her entertainment in honor of another
gentleman, struck him in the eye with a
beer bottle, which chanced to be con
venient, so he says.
Shanz embodies this story of domestic
suffering in a divorce complaint filed with
the State Circuit Court yesterday after
noon. He cites that they were married
here in Portland. February 26, 1W3, but
that since November 26. 1906, she has
chosen to center her affections, at least
her attention, very largely on one Sidney
TYallace. She took the child away by
force, a little boy of three. Shanz wants
the boy back. He says she is not a fit
person to have the child in custody. He
also wants a, decree of absolute divorce.
GROCERS OFF TO BOSTON
Portland Men Will Attend Xatlonal
Convention In May.
A special car will probably be char
tered by the delegates of the Oregon
Retail Grocers and Merchants' Asso
clatton to attend the National con
vention of the Retail Grocers' Associa
tion, which will be held in Boston.
May 11 to 14. The Oregon organiza
tion ' expects to send 18 delegates.
Stops will be made at Salt Lake City,
Denver, Kansas City, St. Louis, or
Omaha, Cliicago, Detroit and "Buffalo.
Aside from the principal purpose of
the trip, which is to capture next
year's National convention for Port
land, much good work will be
accomplished for this city and
state. Tom Richardson, manager of
the Commercial Club, will accom
pany the party and will make the
speech of Invitation to the grocers to
I hold their next convention In Portland.
In addition to .that,-. arrangements will
be made with the various commercial
organizations of the cities through
which the party will pass to entertain
the Oregon delegation and considerable
publicity for Portland and Oregon is
expected to result.
Upon the return trip delegates will
be given their choice of routes and
arrangements will be made to have
them interviewed In cities where they
stop. This will all result in Portland
becoming better known through the
Kast, and as Mr. Richardson will be
along, there is said to be little danger
that the resources of Oregon will not
be exploited fully on this trip.
In some Viennese schools a. phonograph
which repeats speeches as recited by emi
nent actors has been introduced to teach
the pupils declamation.
a
13
No woman'i hppl.
neas can be complete
without children ; it
u her nature to lovt
and want them
as much so ai
it is to love the
beautiful and
par. The critical ordeal through which the expectant mother must
past, however, is so fraught with dread, pain, suffering and danger,
that the very thought of it fills her with apprehension and horror.
There is no necessity for the reproduction of life to be either painful
or dangerous. The use of Mother's Friend so prepares the system for
the coming event that it is safely passed without any danger. This
great and wondertul
remedy is alwaya
appliedextera ally, and
has carried thousands
of women through
the trying crisis without suffering.
Sand tor (m book eontalolsa Information
at yrloelM t4tm to all axpeetMit nether.
Tit Bradlteli Regulator C., Atlaata. 6a.