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Chapter XVII.

Passage of the Wheelan Bills.

Measures Extended Abuses Which the Commonwealth Club Bills Had Been Drawn to Prevent - Went Through Both Houses Without the Members Thoroughly Understanding Their Significance.

The so-called Wheelan bills were passed in much the same way as was the Change of Venue bill. These measures will perhaps be better understood in comparison with certain of the Commonwealth Club bills which were considered in a previous chapter.

Among the Commonwealth bills was one which denied a defendant under indictment a copy of the testimony taken in the Grand Jury room. The measure was drawn on the theory that Grand Juries deal principally with secret offenses, and that the testimony had better be brought out before the trial Court. One object of the proposed law was to prevent the defendant giving out testimony with the deliberate object of prejudicing the entire community against him, and thus increasing the difficulty of getting petty juries to try him.

Furthermore, there are instances, as when Abe Ruef was before the Grand Jury at San Francisco, when the ends of justice require that the testimony given shall be kept secret. But, in spite of these and other considerations, the measure in question was allowed to die in Committee.

On the other hand two bills requiring that transcript of such testimony be given the defendant passed both Senate and Assembly. They were introduced by Wheelan of San Francisco.

Section 925 of the Penal Code, as it stood up to the time of the opening of the session, provided that "the Grand Jury whenever criminal causes are being investigated before them, on demand of the District Attorney must appoint a competent stenographic reporter to be sworn and to report the testimony that may be given in such causes in shorthand, and reduce the same upon request of the District Attorney to long hand or typewriting." It was thus left with the District Attorney to say whether the stenographic reporter should be present, and whether his notes should be transcribed.

The first of the Wheelan bills, Assembly bill 221[79], amended the law by cutting out the words in italics "on demand of the District Attorney" and "upon request of the District Attorney," making it mandatory upon the Grand Jury to have the reporter in attendance.

Further on in the section and in Assembly bill 222[79], it was provided that a true copy of the testimony thus taken should be given the defendant at the time of his arraignment.

These two measures passed both Senate and Assembly.

Assembly bill 223[79], also introduced by Wheelan, provided another cause for the setting aside of an indictment by the Court in which the defendant is arraigned, upon such defendant's motion. The Commonwealth bills aimed to prevent technical attacks upon indictments. The third of the Wheelan bills - No. 223 - opened the way for further technical attacks, by providing that the Court must set aside the indictment "when it appears from the testimony taken before the Grand jury that the defendant has been indicted upon a criminal charge without reasonable or probable cause."

This measure passed both Houses. It opened the way for review before the Court of the testimony taken in the Grand jury room, and endless technical objections, all of which by clever counsel can be employed to delay the case being brought before a trial jury, and in the end perhaps wear out the prosecution, thus preventing the case being tried on its merits. With that section in the law two years ago, it is a question whether the defendants in the graft prosecution at San Francisco would ever have been brought to trial.

It will be seen that while the Commonwealth Club bills aimed to decrease the opportunities for technical defense of men charged with crime, and thus permit the cases being tried on their merits, the Wheelan bills increased opportunity for technical objection.

The history of the passage of the Wheelan bills is practically the same in each instance.

The three bills were introduced by Mr. Wheelan on January 11th, and referred to the Assembly Judiciary Committee. The Committee, which pigeon-holed sixty-three of the Commonwealth Club bills, and reported back the two remaining too late for passage, had better treatment in store for the Wheelan measures. They were reported back to the Assembly on March 6th, at a time when the Assembly was fairly swamped with pending measures. On March 17th, in the midst of a mass of legislation, they were slipped through the Assembly without many of the members apparently knowing what they were. The Assembly journal of that date shows that such men as Bohnett, Callan, Cattell, Cogswell, Flint, Gerdes, Gibbons, Gillis, Hayes, Hewitt, Hinkle, Johnson of Placer, Juilliard, Kehoe, Mendenhall, Polsley, Stuckenbruck, Telfer, Whitney, Wilson and Wyllie, who ordinarily voted for good measures and against bad ones, voted for the Wheelan bills.

With the exception of Bill No. 223, not one vote was cast against the measures. The vote on Bill No. 223 was the last taken. Gillis, who had voted for the two others, appears to have awakened to the fact that something was wrong. At any rate, he voted against Bill 223.

His was the only vote cast against any of the three bills in the lower House, They appear to have gone through the Assembly without thorough appreciation of their significance. At any rate, there were members enough present, who were usually against bad measures, to have prevented the Wheelan bills securing the forty-one votes necessary for their passage.

A reform measure passing the Assembly on March 17th would have had no chance whatever in the Senate. The Wheelan bills were more fortunate.

The Senate Judiciary Committee, before which the Commonwealth Club bills had dragged along for weeks, received the Wheelan bills on March 17th, the day they passed the Assembly, and the same day, March 17th, reported them back to the Senate with the recommendation that they do pass. On March 18th the measures were read the second time in the Senate, and on March 20th, three days after they had passed the Assembly, the Senate passed them.

Such is the difference in action on machine-favored bills and bills which the machine does not favor. Incidentally, it may be said that at the time the Wheelan bills were before the Senate, the machine had that body tied up in the fight on the Direct Primary bill.

The reform element - at the mercy of the Senate organization - was compelled to devote its whole attention to the Direct Primary bill. The machine was thus left to run committees and Senate at its own free will. It was an admirable situation from the machine standpoint.

But by the time the Wheelan bills had been hastened to the floor of the Senate, the reform Senators apparently awoke to the fact that some sort of a job was on the way. When the bills came up for final passage, however, the anti-machine Senators were apparently as much at a loss concerning them as the anti-machine Assemblymen had been.

Bill number 221 came up first, and even Senator Bell, the staunchest opponent of bad laws of them all, voted for it. With Senator Bell voted Caminetti, Estudillo, Rush, Thompson and Walker, who were ordinarily against the passage of bad bills. As the measure received but twenty-three votes, any three of these by voting no could have defeated it.

Price, who had voted for the bill, gave notice, at the request of a fellow Senator, that on the next legislative day he would move to reconsider the vote by which the bill had been passed.

Before taking up Assembly bill 222, companion bill to 221, the Senate passed three measures and considered several others. By the time Assembly bill 222 was reached, Senator Bell had got his bearings, and voted against it. Caminetti had also found himself, and although Caminetti voted for the measure, he gave notice, that on the next legislative day he would move for its reconsideration.

The third of the bills, No. 223, followed 222, and Walker, who had voted for the two other bills, voted "no." The bill was passed by twenty-three votes, Cutten voting "aye" for the purpose of giving notice to reconsider.

The motions to reconsider were voted upon on the afternoon of Monday, March 22, the day of the final fight on the Direct Primary bill in both Senate and Assembly. Nobody was thinking of much of anything else that day. In every instance reconsideration was denied[80]. The vote by which they had passed the Senate stood.

[79] Governor Gillett signed Assembly bills Nos. 221 and 222. They are now the law of the State. Assembly bill No. 223 he did not sign. It did not, therefore, become a law.

[80] The Assembly history of March 23, fails to record that the motions to reconsider were made on the three Wheelan bills. In an article concerning these bills which the writer prepared for the Sacramento Bee, governed by the official record of the measures, the History of the House in which they originated, he stated that motions for their reconsideration were not made. The Senate Journal of March 22, however, pages 23 and 26, shows that these motions were made, and in all three cases defeated.

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