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to comply with the law, in that of the
jurors selected some did not posses? tne requi
site qualifications, is equally untenable as a
.ground of challenge to tue panel. .(People v.«.
Young, 108 Cal., 12 ) To hold mandatory the
provisions of section 205 oi the Code of Civil
Procedure, and unis to require of the Judges
the strictest compliance with the law in the
matter of ill- selectiou of jurors, would M to
tho last degree unreasonable. They would
then be obliged to lay aside ell other business
and devote their time for day.*, and perhaps
weeks, to personal inquiry, inspection and
examination of 3000 men (the number of
jurors called for), and after this labor to de
oid« at t4ioierilof a rejection of the whole
panel, thai io the final name Upon the list
fHC.'i uian possessed nil the qualifications of a
juror. The provisions of the Motion are di
rectory, and a suDstantial compliance with
them is Here shown and is all thai may be de
■Rrj;ardiiie Trial Jurors.
• Section 204. of the Code- of Civil Procedure
provides that in counties and cities and coun
ties of more than 100.000 inhabitants the
Juiigos of the Superior Court shall select and
return trial jurors. Though the. section was
amended In 1881 and again in 1893 the pro
visions relative to cities and counties of over
100,000 inhabitant* remain unchanged so far
us affects this consideration. Before the pres
ent constitution went into operation the
jurors were selected by the District Judges of
.the several judicial districts within the City
and County of Sun Francisco, the County
• Judge, the Probate Judge and the Judge of the
Municipal Criminal Court. The amendments
to the section made after the adoption of the
present constitution were designed to meet
' the new judicial system provided for by that
instrument. This section was a part of the
code beiore adoption of our present con
stitution,' and by that instrument (article
XXII, section 11) all laws relative to the judi
cial system tneu la force were made applica
ble to tho new system provided by the consti
tution/ Section 204 of the Code of Civil Pro
cedure was not unconstitutional under our
earlier organic law, and did not become un
constitutional by force of the present one. To
tne contrary, iho section was expressly re
■ tamed in force.
The court summoned jurors Dy special ve
nire. To iho panel thus lormed defendant ob
jected. The objection was not base.i upon
section 1064 of the Penal Code, but upon the
ground that the regular jury list had not been
exhausted. This is not a around for challenge.
(C. C. P., sections 220-227; Levy vs. Wilson, 09
Cal., Ill; Peop.o vs. Vincent, 95 Cal., 425).
"The court may summon jurors by special ve
nire without exhausting all of the names upon
the regular list.
Disallowed < hallenges.
To the jurors Crocker and Nathan chal
lenges were interposed for i dual bias, nnd"r
subdivision 2 61 lion 1073 of the Penal
• ode. The challenges were disallowed.
.Whether or not the jurors Crocker and Nathan,
, or either of them, were shown to, be disquali
fied by actual bias against the defendant, and
therefore whether or not ttie trial court erred
in disallowing the challenges interposed to
them, is not under the facts presented by the
record a subject for consideration by this
court. The challenges lor cause having been
disallowed, the defendant d:d not see fit to ex
ercise his right of peremptory challenge I'pon
either of the jurors, but accepted them both.
When the jury was completed, defendant stilt
had in reserve and unemployed eight of Ins
twenty peremptory challenges. It bus in this
state been beid in numerous Instances that,
even if the Judge errs in disallowing a chal
lenge for cause, and. the defendant thereafter
excuses the obnoxious juror under a peremp
tory challenge, and the jury is completed
without the exhaustion by lac defense of all
of Its peremptory 'challenges, the error of the
court will, not be reviewed upon appeal, be
cause no injury could have resulted to the de
fendant. (People vs. Galewood, 20 Cal., 140;
• People vs. rannt, '-':> Cm.. 15(5; People vs. Weil,
40 -Hi., 258; People vs. McGungill, 41 Cal.,
. I ie situation here presented differs some
what from that presented by the cases last
. above cited, but the reasoning which gov
erned the decisions in those cases is strictly
applicable to the one at bar. The defendant
may not have reviewed an error which he has
invited or has Galled to avoid by the legal
means at his command. If the defendant
.feared to put himself on trial b«fore the jurors
whom ho had challenged, it whs his duty to
avail himself of the liberal aid which the<iaw
affords him and to have excused them from
the box. (i in so doing he lessened the num
ber of his peremptory challenges to such an
extent that it appears that they -were ex
hausted before the completion of the jury, he
may well be neurd to urge in argument that
by reason of the erroneous ruling the number
/of his peremptory challenges was improperly
curtailed and ho was deprived of a legal right;
but when it is show., a* here, that Ihe two
jurors in question were accepted and allowed
to remain, when the defense could have exer
cised peremptory challenges upon them, and
'further, thai at the time when the jury was
completed there was-still held in reserve by
the defense nearly half of its peremptory chal
lenges— under these circumstances error
was committed by the trial court, it was either
acquiesced in by the defense or permitted by
its failure to exercise its legal right, and the
ruling will not be reviewed.
The Rule Overwhelming. -■~
There will be found in the cases some slight
diversity of opinion upon the question, but
the great weight of authority is in support of
the view above expressed. Thompson on
"Trials, tien 120, thus declares the princi
ple: "It is a rule of paramount importance
that errors committed in overruling chulenges
for cause are not grounds for reversal, un
less it be shown an objectionable juror was
forced upon the challenging party after he
had exhausted his peremptory challenges; it
his peremptory challenges remain unex
hausted, so that he might have excluded the
objectionable juror by that moans, he has no
ground of compialnt." The rule above staled
finds overwhelming support from the authori
ties, of which a low maybe cited: State vs.
Gooch, 94 N. C. 987; Williams vs. the State,
30 Tex. App. , 354; State vs. Le Huff, 40 La.
An., 540"; State vs. Yetzer(!a), ('>•! X. W. Rep..
737; State vs. Hartley (New), 40 Pac Rep..
372; People vs. Aplin, Sti Mich., 393; Brura
back vs. German National Bank. 4(5 Nob , 540;
Prewitt v«. Lambert, It) Colo., 7; Spies vs. The
People, 122 111., 1.
Nine jurors had been sworn to try the case.
At this stai:e of the proceedings the District
Attorney asked and obtained permission of
the court to reopen the examination of one
of these (Brown), and to question him upon
matters which had come to his knowledge
since his acceptance 1 as a juror, Permission
was granted over objection and exception of
defendant. At the conclusion of the examina
tion the District Attorney asked leave to in
terpose a peremptory challenge to the juror.
Leave was given, and this ruling was assigned
as error. Section 1068 of the Penal Code pro
vides that a challenge (either peremptory or
for caus«i must be taken when the juror ap
pears, <i:id before he is sworn to try the cause,
but the court may for cause permit it to be
taken after the juror is sworn, and before the
jury is completed. It was not error, there
lore, for the court to permit a re-examination
of the juror upon matters coming to the
knowledge of the people or defendant' after
his acceptance, and beiore the completion of
the jury. The course here pursued was that '
toll owed in People vs. Bemmerley, 87 Cal.
117, and approved by this court. •
Brown and the Unwell Case.
The uew matter upon which the juror Brown
was questioned touched his connection with
the case of one Ho well, who hud been tried in a
Federal court for passing counterfeit money.
Brawn had been a juror in the case, and with
others had voted for Howel.'s acquittal. The
result was « disagreement of the jury, and a
mistrial. Rumors thai the Howeil jury had
been approached and corrupted were current,
and toe next Federal Gratia Jury instituted an
investigation. Brown was summoned before
it and interrogated as to his knowledge of the
natter, but in justice it should be added that
the record before us does not disclose that his
own integrity was under assault.
There was undoubtedly not enough in this
to warrant the interposition of a challenge for
cause, .but section 1063 of the Penal Code con
templates also the taking of a peremptory
challenge, as one does in this case. When the
code bays that the court may tor cause permit
the challenge to be taken it means as the
language has been interpreted th» t it is no; a
matter of right to either parly, but may be
permitted in the exercise of a sound discretion
(People vs. Reynolds, 16 CaL. 123; People vs.
Montgomery, 53 Cal., 576: People vs. Bern
merly, 87 UaL, 117); and as said 111 People
vs. 'Montgomery, in granting or refusing
permission. It will not be presumed that the
court has abused us discretion. As in ail mat
ters not ordered by inflexible rule, 110 set for
mula applicable to every case maybe laid
down to govern and measure the exercise of
discretionary power. As each MM arises its
determination must rest upon its peculiar
facts and what might be an abuse under one
set 01 circumstances mignt be a fair exercise
under another. In every case careful regard
will be had to see whether or not the subs'.an
tial rights of a defendant have been jeop
ardized or impaired, but. if they have not,
then the ruling i« not to by disturbed, for at
ihc worst it could be but a technical error
which the court* are commanded to disre
gard. (Penal Code, Sec 1404) Having in view
the r. a. ure ot the District Attorney's inquiry,
and hi.> manifest suspicion that the juror was
or had been approachable and venal, it 'might
well be that «.s a result of the inquiry the
juror was loft i.i a stale of extreme hostility
to ihe prosecuting officer. ...
No Abuse of Discretion.
He upon bit pur: had tailed to establish
ground lor a challenge lor cause, ond if he
iouid net exercise a peremptory challenge he
would be compelled to try and argue his case
before a jiir>r wteOM attitude naturally was
one of bitter an t agon ism to him. It may
SRlely be said that, liowover disinterested it
juror might be as between the liUgfcaU, Do
advocate cberlstiinii lu.s client's interests
would willingly accept oue whom he believed
.o be hi* personal enemy. These obvious con
ideratiuui were m the miud of the trial
Judge. Moreover, tho defendant had not ex
hausted his peremptory challenges. Four
other jurors were obtained, to > none of whom
was auy challenge, taken by Ihe defense, and,
as has been said, when the: jury was. finally
completed there remained to tho defense
uuexerclsed eignt-ofiiis twenty peremptory
challenges. The ruling by which the prosecu
tion was allowed to interpose the peremptory
challenge worked no hardship 10 the defen
dant, liis right was to a fair and impartial
jury, not to a jury composed of any particular
individuals. Where it appears that a fair and
impartial jury was obtained it is the general
rule that an error of the court in allowing a
challenge and permitting a juror to be ex
cus dis not subject to review. (Territory vs.
Roberts, 9 'Mom. 12; State vs. Kleuman, 33
Minn. 341; State vs. Chin Ling, 10 Or. 410;
Snow v . Weeks, 75 Mo.. 103; Thompson vs.
Douglass, 35 W. Va., 337; John vs. State, 16
Fla., 554;. State vs. Ward. 39 -Vt.- 325; Wat
son vs. The State, 63 M<l., 543; "laian vs.
Younsr. 1 Porter. Ala., 293: Richards vs. The
State, Nebr. 53 N. W. Pop. 1028.)
It cannot be said under t tie circumstances
shown that any injury resulted to defendant
from the ruling, or tuat any abuse of discre
tion is shown. (People vs. Arcot, 33 Col., 40;
People vs. Murray, 35 Cal., 350; People vs.
Murphy, 45 Cal., 137.)
The Evidence Juntifles the Verdict.
The contention of appellant next to be con
sidered Is that the evidence is insufficient to
justify the verdict, ana that tho verdict is
contrary to tno evidence in this, that the evi
dence fails to show how, when or where
Blanche Lamont was murdered, or that the
deiendani in any way was instrumental in
causing her death.
No small part of appellant's argument herein
is devoted to an attack upon the credibility of
the witnesses for the prosecution. In this at
tack the tersonal characters of many are as
sailed, and the unreliability of me evidence
of nearly all is insisted upon. It here again
becomes necessary to repeat that these argu
ments touching the credibility of witnesses
eminently proper'to be addressed to the jury
or to the Judge upon motion for a new trial,
are not for our consideration. This court sits
in criminal cases solely for the correction of
errors at law. If in any criminal case there
be evidence adduced logically tending and le
gally sufficient to prove the guilt of a defend
ant, this court cannot and will not disturb the
jury's determination, even under a claim that
there is conflicting evidence which might
have raised a reasonable doubt of his guilt.
The province of the jury in weighing evi
dence and determining the credibility to be ac
corded the testimony of witnesses isunder the
rules of law conclusive. A Judge mny not in
struct upon matters of fact. If a witness
should absolutely discredit his own testimony
by swearing to opposite statements, so that
one or the other must be false, under our laws
his testimony is not of necessity to be rejected.
It is still evidence in the case. Under such cir
cumstances the jury must receive and weigh it.
They are bound to look upon it with suspicion
and distrust and may reject it. But, upon the
other hand, they may as nicy determine accept
as true one or the other of the contradictory
asseverations. Thus, upon a review of the evi
dence by this tribunal, we may not examine
with minuteness claims that witnesses are dis
credited, or that their evidence is unworthy
of belief, or look to see whether some other
conclusion might not have been wnrranted by
the evidence. (Blythe vs. Avers, 102 Cat., 254).
Ad questionein juris respondeant judices, ad
quesiionem facM re-pondeant duratores— »nd
than this no maxim of the old law has been
more carefully preserved in its integrity under
Where It is not clear that tho verdict must
have been rendered under the influence of
pession or prejudice, our examination of the
recoid is only to determine whether legal evi
dence has been offered sufficient to warrant a
conviction, for the verdict of the jury is their
declaration that it is this evidence which has
been by them accepted. (People vs. Ah Loy,
10 CaL, 301; People vs. Vance. 21 Cat., 400;
People vs. Strong, 30 Cal., 131; People vs.
Dick, 32 Cal., 214; People vs. Manning. 48
< al., 335; People vs. Estrada, 53 Cal., 600;
People vs. Mayos, CO Cal., 597; People vs. Ah
Jnke. 91 Cal., 93; People vs. Freeman, 92 Cal.,
Fact* of the Murder.
The following facts were presented in evi
dence: Upon April 3, 1895, Blanche Lamont
was living with her aunt, Mrs. Noble, in the
City and County of San Francisco. She was in
person rather tall and slight, and weighed
about 120 pounds. Her age was 21 years. She
was a schoolgirl attending the High school,
and upon the morning of April 3 left nor
home, with her sfap of books, to join her
classes. She met defendant while on the way
to school (such is his testimony), and
he accompanied her for a part of
the way. She was at ." school .during
the day's session, and at its close, about 3
p. m., left with the other pupils. She did not
return borne, and never after that day was
seen alive. Shortly after 9 o'clock upon the
morning of April 14 two police officers and the
janitor attempted to open the door leading to
the belfry of the Baptist Emmanuel Church.
They were prosecuting a search for Blanche
Lamont. The knob of the door was gone and
! the lock mutilated so that the janitor's key
could not open it. Taey forced the door
ana one of the officers ascending the stairs
found iho body of a girl lying on tho top
landing, in the southeastern corner of the
belfry. It was that of Blanche Lhmont. Thu
body was naked, lying upon its back, tho feet
close together, the hands folded upon the
breast, the head inclined a little to the left.
There were two small blocks, apparently em
ployed to hold the head in an ; upright posi
tion. Decomposition was well advanced, and
by medical testimony life had been extinct for
about two weeks. An examination and
autopsy of the corpse revealed seven finger
i nail incisions upon the left side of the throat
and five upon the right, a depression of the
larynx and a congestion of the trachea,
larynx, lungs and brain. Strangulation was
the cause of death. A search brought to light
the clothing and apparel of the girl hidden in
and about the rough underwork of the belfry
and also her bootstrap and schoolbooks.
Arrest of Durrant.
Upon April — the defendant was arrested
and charged with this murder. At that time
Durrant was a young man 24 years of age, a
student of the Cooper Medical College of San
Francisco, and a member of the Signni Corps
of the National Guard of trie State. He was
interested in religious work, was an attend
ant, it not a member, ol the Baptist Emman
uel church, was a member ot the Christian
Endeavor Society, was assistant superintend
ent of the Sunday-school, and was librarian of
the church library. As is abundantly testified
to, ne bore the esteem of his fellows as a zeal
ous, earnest and upright youug man of com
mendable character, and of sincere Christian
life. When arrested he was upon service of
the Signal Corps to. which he was attached.
Upon his trial his defense was an alibi. He
declared that he had won Blanche Lamout in
the morning of April 3, when she wa* on her
way to school, hut never again thereafter; that
he himself had gone to bis medical college,
and there had attended a lecture at the time
when by the claim of the prosecution the girl
hfld be/n by htm murdered in the church.
rpr.i the part of the prosecution it was
shown that Blanche 1.-amont was a regular at
tendant of Emmanuel Church, and belonged
to the society of Christian Endeavor, of which
Durrant was also a member. The two wero
well acquainted. Indeed, they seemed 10
have stood in their intercourse upon 'enns of
cordial and trusting friendship. They met at
social and religious gatherings, to or from
which Durrant frequently escorted the girl, in
company with her sister and other* of their
social circle. Durrant had a key to the side
door of the church, and whs thoroughly fami
liar with the building ana premises.
Some Important Witnesses.
Mrs. Hugh Vogel lived across the street from
the school which Blanche Lamont was attend
ing. S:ie saw defendant a little after 12 o'clock
o: the atternoon of April 3, in front of the
schoolhouse, walking up and down, apparently
In waiting. When school closed she noticed
two girls coming out together. One of them
carried books in a strap. They walked to the
corner cf the street, where ttoy stopped for
a car. The defendant joined them as they
were about to board it. One of the girls went
insidu. The other sat outside upon the dummy.
Toe defendant joined this girl and seated
himseli beside her.
Minnie Edwards testified that it was she
who accompanied Blanche LimoDt from
school that aiternoon. They wero Joined by
Durrant at the corner. Blanche Lamont and
he &at together outside, wiiiie she found a
■eat within the car. Banche Lamont had
her schnolbooks with her.
Mrs. Alice I 'organ at the time of these occur
rences was a pupil of the same school. Upon
that afternoon she, too, saw Blanche Lamont
upon th-j dummy in company with the de
May Lanigan, another ot the schoolgirls,
also saw the two upon the dummy. This was
from fly.> to ten minutes after 3 o'clock.
Mrs. Elizaieth Crossett hud known the de
fendant for about four years. Between half
past 3 and 4 o clock of this afternoon, while
she was npon a Valencia-street car traveling
toward Twenty-fifth street, she saw detendant.
He was seated upon the dumm>* of her car in
company wM». a young lady whom she did
not Know, but wnose description answered to
that of the mur lered giri. The two were in
convcrsniion and left ihe car at Twenty-first
or Twenty-second street and walked in the
direction of Bartleu street. The Emmanuel
Baptist Churcu is situated upon Bartiett
street, between Twenty-second and Twenty
Martin Quinlan, between ten and ; twenty
minutes past 4. o'clock of this afternoon, saw
the defendant and the young lady whose de
scription corresponded -to that of the girl,
and who carried a loose package in her hand
by a string or strap, walking along Bartlett
street from Twenty-second street toward
Twenty-third street. - They - were «.: upon the
same side of the street as the church and were
walking toward it. - ;"- ; ■ ' „
Mrs. Caroline Leake lived upon Bartiett
street, almost directly opposite the church.
Sue had been an attendant there at divine
service for many years. She had kuown de
fendant for the pant three or four years. She
THE SAN FRANCISCO CALL, THURSDAY, MARCH 4, 1897.
Theodore Durrant Receives the News While at Dinner That He Most Hang.
also knew Blanche Lamont. Between 4 and
4:30 of this afternoon she saw Durrant and a
young lady pass though the gate into the
churchyard and on . toward the side door.
His pa lion she could not Identify posi
lively, but from her appearance thought at
the time that it was Blanche Lamont, or an
other young lady of similar- size and height.
This young lady testified that she was not
with 'defendant at any time upon that day
and no claim is made that she was. , ;
George King** Testimony.. .;
George King was a member of the church
and its organist. He knew defendant and the
two were very friendly. At 5 o'clock on this
afternoon he entered the church by the front
door, letting himself In with : his key. He no
ticed a strong smell of gas and went forthwith
to the library to see if it was escaping there,
He failed to find the leak. Thence, closing the
library door, he proceeded directly to the
Sunday-school room and sitting at the piano
began -to play. He played for two or three
minutes, when defendant came through the
toMing d'lors to the rear and stood looking.
«t him. "I asked him what was the matter,
because of his pale condition. Ho had his coat
off and his hat off. His hair was somewhat
disheveled: He came through and '■ then told
me that he had been fixing the gas above
the auditorium and had been overcome by it
to such a degree that he could hardly descend j
the ladder. Ha seemed ill. Ho handed me a
50-cent piece and asked me to ; go and
get some broino-seltzer." Witness procured the
seltzer upon his return found the defend
ant either standing in the lobby or lying upon
the platform in the Sunday-scnool, room. He
think*, however,' that defendant- was -lying
down. : Defendant took a dose of the seltzer,
which seemed to nauseate him somewhat.
The two sat and talked together for a few
minutes, then went upstairs to the choir loft
and carried down a sum II organ. Peiendant
appeared weak and hed to stop two or three
times to rest. Then they went to the library
door, which Durrani unlocked, and entering
put on his hat and coat, which were lying on a
box in the corner. Witness, had not seen the
hat or coat when he went' into the library the
first time that afternoon. They then left the
church and walking some distance together
separated and went to their respective homes.
It was then about 0 o'clock. . ■ •■
Upon the morning of April 13, ten days after
the disappearance of Blanche Lamont and one
day before the ' discovery of her body, her
aunt, Mrs. Noble, received through the mail a
package which contained alt of the rings worn
by her when she left her home. The rings
were inclosed in a copy of the Examiner, and
upon the paper were wriue i-' the names of
George King and Professor Scnernst.'in. King
was a common friend of Durrant and Blanche
Lemon t. ; Professor Schernstein was her music
teacher. Neither of the two wrote th>* name.
The paper and wrapper were exhibited to the
jury, ■ together- with admitted exemplars of
Sale of the Ring. . .
Upon a morning between the 4th and 10th
of April Adolph Oppenheimer, a pawn-broker,
was offered for i=a!e a gold ring containing a
diamond chip. The ring was identified as one
worn by Blanche Lament at the time of her
disappearance, and subsequently returned to
her aunt through the mail. The person offer
ing the ring for sale was the defendant.
William Phillips testified that some time in
the first port of April he saw defendant stand
ing in front of Oppenhctmer's place between
10 and 11 o'clock in the morning. ■
" Dr. G. F. Graham ; was ' a student ' and' class
mate of Durrant's at - the Cooper Medical Col
lege. From 3:30 to 4:15 p. M. of April 3 Dr.
Cheney of : thai college delivered a lecture to
his class upon the sterilization of 'milk. Dr.
Graham attended that lecture and took notes
of it. The defendant, in support of. his alibi,
claimed to have attended the lecture, and like
wise to have taken original notes, which were
admitted in evidence. Dr. Graham testified
that alter Durrani's arrest, and before the
trial, he visited him with a friend. Durrant
requested his companion to withdraw that he
mi;.; Nt talk to Dr. Graham alone. When he
had done so defendant iiuormed Dr. Graham j
that he had no notes of the lecture, and re
quested the doctor to- lend him hi*, saying
that if be could get them he in -a e-tubllsh an
alibi. Defendant told him that he could take
the notes to purrant'i house, get his book and
put them in it, and the oook could be brought
to him in jail, or that the witness could com
mit his notes to memory, come to the jail and
repeal them to him. -
Summary of the Evidence.'' '■
This summarization of the evidence is not
designed to bo exhaustive.. Much that is
cumulative upon the part of the people is
omitted. No analysis is made ol the alibi of
the defense, or of the claim of the f>ros?cu lion
that, when not completely demolished, it
stnuils upon the unsupported word of the de
fendant. Enough has been set forth to show
that the verdict and judgment finds support
from legal and sufficient evidence, and when
that point is reached the inquiry of this court
comes to an end. saving in those: exceptional
ca>cs, of which this is not one, where the evi
dence against the defendant is so slight as to
make clear the inference that the verdict must
have been ; rendered . under the ," influence of
passion or prejudice, (People, vs. Vance. 21
Cal., 400; People, vs. Manning, 48 Cat., 335.)
By this evidence tht» defendant and Blanohe
Lamont, she with her strap of books, entered
the Emmanuel Church at about half-past 4
o'clock in • tho : afternoon of April ; 3.. At 5
o'clock defendant is seen there, and explains
his distressed : condition as caused by t:ie in
halation of gas. : At 6 o'clock he leaves the
church. Blanche Limont is never again .-ecu
alive. . Two weeks nfter her nude and decom
posing: body Is found in the church. She had
been strangled and her corpse dragged to the
belfry. The clothes which she wore on. leav
ing home are secreted about the floors and
rafters. Her books are found, still tightly
strapped. Tr.ese tacts, with the others set
forth, are sufficient to justify the hypothesis
of defendant's guilt nnd to exclude every
other reasonable hypothesis than that of his
guilt. ; Such evidence is clear sufficient "to
warrant | and uphold the determination that
the girl was strangled to death at the hands
of the defendant up.in the afternoon of Aprils.
The evidence of defendant's previous good
character, so fully established, \va-> a circum
stance making; strongly in his favor. " We are
asked to say that the jury disregarded it in
reaching their verdict, but this we cannot do.
They were fully .and fairly instructed upon
the matter, and it must be. presumed that the
instructions were regarded. 'V ;t ' '.'
Moti^ for the Crime.
Appellant further urges that the evidence
fails to . disclose ■:■ any motive i for the crime ;
that proof of motive is essential to support a
conviction, nnd that, therefore, the judgment
must 'be reversed. vlf by this is meant % that
proof of a particular . motive must be as clear
and cogent as the proof of tha crime the prop
osition finds no support either In reason or
authority. To the act of every rHtional human
being pre-exists a motive. In every criminal
case proof of the moving cause is permissible,
and oftentimes is valuable; but it is never es
sential. When the perpetration of a crime
has been brought home to a defendant the mo
tivo for it' commission becomes unimportant.
Evidence of motive is sometimes of assistance
in removing doubt and completing proof which
might otherwise be unsatisfactory, and that
motive may either be shown by positive evi
dence or gleaned from the facts and surrouud
iugs of the act. The motive then becomes a
circumstance, but nothing more than a cir
cumstance to be considered by the jury, and
its absence is equally a circumstance in
favor o f the accused, to be given
sucr: weight us they deem proper. But proof
of moiive is uever indispensable to a convic
lion. (People vs. Bennet', 49 N. V., 13V;
Pointer vs. United States. 151 I". 5..39H; John
son vs. United States, 157 U. 8., 157; Cliiton vs.
Stnte, 73 Ala., 473; Bumnsr vs. *'.ate, 5 Blackf.
Ind., 579.) The uel [springs of human cotiducl
are infinite, and infinitely obscure. An act
may owe its performance to complex ana mul
Who knows each chord, its various tone,
Each spring, its various bias.
Or the deed may be due to a single motive,
so black, *o horrible, so monstrous, that even
when thts books i>i the learned cnminologist
have been studi- ! the no-mtil mind still
shrinks from a beiief in the possibility of its
existence. In this case, what the motive may
havo been it is not th* province oi this court
Attitude of the Press.
Purina the lmpanelment of the jury, the
defense made application for citations ngainst
certain newspnper editors to show cause why
they should not be punished lor contempt
because of their publications relative to the
trial. The court refused to interrupt the pro
ceedings to consider the matter ti.en, and post
poned action, statins that at a proper time it
would upon request take such steps tis might
bo contemplated by law. Again, during the
impaneiment of the iury. the application was
renewed, and the ccuri's response whs the
same. No further request was. made, and th.-re
the nißt.er was allowed to stand. This is
urged as reversible error.
While a contempt proceeding for convenience
is presented in the cause out oi which it grows,
it is a separate and distinct matter, aud no
part of the original case. (Ex parte Ah Mon,
77Ca1.,196.) l-ower to punish for contempt
is vested in oi>urts for their own protection.
Its object and purpose is to iusure respect for
their rules and orders, obedience to their pro
ceßses, and fre dom from disturbance or inter
ference with the due and regular course of
their proceedings. (5 Am. anil Enc. Enc. of L.,
p. 780; Thompson on Trials, Sec 124.)
A publication during the course of a trial
which reflects on the court, or assails the liti
gants, or seeks to intimidate witnesses, or
spreads before the jury an opinion upon the
merits of the controversy, or threatens them
with public odium, or attempts to dic:ate the
decision, or in any improper way endeavors
to influence the determination, is unquestion
ably a contempt ot court (in re. Shortrid *c. 99
Cu1.,532); but at the same time & litigant bus
no appeal from the action of the Judge m
dealing with the matter. The litigant may
not control thi» process, which is dcs gned ior
the protection of the court, and which is to be
invokod or not, us its discretion may diciate,
but which should be employed freely where
the interests of justice or the rights of liti
gants demand it. '-The doctrine is well nigh
without exception that the issuance vel non
of contempt proceedings lies ia every in«:ance
in the scuud discretion of the coun." (4 Enc.
Plead, and Prac, p. 774.) if by tne failure of
the court ;o proceed ngainst the editors orany
of them defendant has failed to obtain the fair
and impartial trial to which the law entitles
him, he may make that appear upon his mo
tion mr a new trial, and the question will thus
pome before us properly for review, In this
ca*^ the question is raised in the manner indi
cated, and It will be considered upon the nier-
Us in its proper place.
Killing* of the Court.
Numerous objections were made and excep
tions reserved o the court's rulings in admit
ting and rejecting evidence. Thege rulings
have been suijcctedto critical examination,
including those which in appellant's briei re
ceive no discussion, but are grouped by num
ber and co.lectively assigned as error. While
none, therefore, have been ignored, we will
here consider only such as merit particular
a. Dr. Barrett was shown to be a practicing
physician uud surgeon. He perf. rmed the
autopsy- upon the body of the dead girl, gave
evidence of its condition, and expressed his
judgment that the cause ot death was strangu
lation. He was then asked, "Wnat in your
judgment was the means used for the strangu
lation ?" Objection was made upon the sole
ground that no proper foundation had been
laid for the quesuo- . The objection was :
properly overruled. The objection does not
present the point that the fact sought to be
elicited va- not the subject of expert |
inquiry; nor is that proposition argued '
in the briefs. That being coucede<l, theobjec- j
tion that a proper foundation for the question I
nad not been laid, could not be sustained,
when the witness was a physician and (surgeon,
whose competency had been abundantly
shown. Theuitn-'ss answered: "I think toe
raet.ns used were hands." The appellant in
sists that tne court erred in refusing to strike
this answer out, a- the question called for the
v. ituess' judgment, ana he only gave his
thought. The expressed thought ot the ex
pert was clearly his judgment.
b. 'I he clothing of Blanche Lamon t admitted
as exhibits was draped upon a dressmaker's
frame, winch itself was not in evidence. It
was not claimed that the frame represented
the height, size or figure of the girl. Error is
predicated upon :he use of the frame and the
refusal of the court to order the garments fe
moved Iron it. Tne frame tfforded a con
venient mode for displaying the we: r ng ar>
parei, concerning which mucn evidence was
taken. We can discern no more impropriety
or irreKwarlty in the plan pursued than if the
garment* had been hung upon a clothesline
or huddled into a corner.
c. Mrs. Vogel, cross-examined by the defense
and a-<ke'\ how she fixed the date* upon which
sne saw Durrant as being April 3, replied that
it was because of a postal card which her hns
band receive! that day and which had been
directed to 732 Nntoma street. "That place
we own, but is occupied by tenants. 1 have
never lived there."
"Q.— Well, is that your property or your hus
"A.— What he got is mine; what I got is his.
"Q.— Do you understand my question? I
H-kt-.l you in whose name doet the title to this
t property on Naioma street rtandT" Her* the
Judge interposed, and stating that he could
see no possible materiiUitv or relevancy to the
question, instructed ihe witness that she need
not answer. There was in this no error. In
deed, it is the duty of a court, nnd one not
often enough performed, to expedite business
by curtailing cross-examinations upon imma
terial and irrelevant matters. We cannot per
ceive the slightest pertinency to the !• quiry.
No question of right or title to property \vas
even collaterally or remotely involved, and
had tho witness answered, the subject being
immaterial matter educed on cross-examina
tion, the defense would have baen Dound by
her statement, without right to impeach it,
even hnd it been false. (C. CL P., Sec. 2408.)
d. Mrs. Crossett declared that to the best of
her recollection the young lady whom she
saw with defendant wore a broad-brimmed
hat, light, with large bows and feathers in
front. She did not recognize the hat exhibited
to her, which ha<t been proved to be the one
worn by the dead girl. She was then asked:
"Can you tell whether it was .a hat similar to
that tnis young iady wore?" Objection was
made that the witness iiad already stated that
she could notrecognize it. The court permitte<!
the question, snying: "I think they have a
right to ask whether there is any similarity,
and, if so, what similarity there is betwee'u
the hat shown to her a:id the hst &ho saw the
young lady wear." Tho manifest soundness of
the ruling renders comment unnecessary.
The same witness wits interrogated on cross
examination as follows:
"Q.— Have you seen him (Durrant) at all
since last September, 1894?
"A. — Yes, sir
"Q. — That is, you imagine you have?
"Mr. Barnes— l object to the question.
"The Court— That would not be proper. The
lady is telling what she has seen. Ido not
mink when a lady says 'I nave seen him since
September' that counsel has a right to say
'You imagine you did.' * * • It disconcerts
t..e witness and Ihrowa a very serious doubt
upun the statement. You should have the
right to cross-examine this witness and all
other witnesses, but I do not coucede that this
is a proper way to do it.
• "Mr. Deuprey — We will have to take an ex'
"The Court— You have your exception, cer
tainly, to every ruling of the court, but 1 say
that this and all witnesses in this court are to
be treated fairly.
"Mr. Deuprey— l did, sir, treat this witness
"Tho Court— The court does not believe you
"Mr. Deuprey — I take an exception to the
Upon this rilling and these remarks error is
affirmed. It is the richt of a witness to be
protected from irrelevant, improper or insult- '
ing quest'ons and from harsn and insulting ;
demeanor; to be detained only so long as the
interests of justice require it; to be examined
only as to matters legal and pertinent to the
issue. (C. C. P., Sec. i2O6t>.) The protection
which the Code thus affords to witnesses could
be more often extended by Judges wiih a sal
utary effect upon judicial proceedings. The
witness, a lady, had testified courteously and
positively that she had seen defendant str.ee
the date named. The interjection ot counsel
was not legimate cross-examination and jusil.
fled the interposition of the court.
E. Blanche Lamont's si-tor Maud was living
with her at the time of her ilis:ippearanca.
She was a picture of Blanche taken
about three years before tne dftte of her testi
mony and was asked whether or not the pho
tograph was a fair representation of her sister
as she was upon April 3. Over objection and
exception slie was permitted to answe. It is
a general rule without contradiction that
where the photograph is shown to be a faith
ful representation of what it purports io r. pro
duce it is admissible as an appropriate aid to
the jury in applying tho evidence, ami this is
equally true whether the photoeraph be of
perse ns, things or places. (Rice. Crim. Ev ,p.
154; Wharton, Crim. Ev., Ninth Ed., section
544; Thompson on Trials, section 869) The
fact that the photograph whs taken two or
more years before the date of the nirl's di^np.
pearance did not justify its exclusion after
the testimony of the sister that it fairly repre
Evidence at Home, Which Is the Best Evidence, Is Strong in
Praise of Dr. Sanden's Electric Belt.
<& ] &&m£o*&, - A REMEDY WHICH MAKES • ITS
A^./V.,'^ .- 1 *"-^.^ "- claim for merit based upon the cures
a%/ I^E^L- **$M!ek W^ia^^/K perform ed_ at home must be honest— its
A' >i ■^SS^^y^^'^^'f^^^^ '/ /a cures must shine out stronply as a beacon
■SrW<^ *-..•"•" ->^»S3l I'Rlit to other sufferers. They must be
■&£*£: ,v.«'.'*, r;j.v J£>d£m real ' S enuine cures, in which Deople can
*^XT Jj dace confidence, for the authors of such
letters can bo found and their friends can
/ 3"**Tl|'t^> t! T^' ! if^^* 7^^ ' testify to what they say. Such is the
:>"; , ' ■|//jp^V-"' I '^/jiVi'" . foundation upon which the claims of Dr.
r".;V.'| s Saoden's Electric Belt are based. It is
easy to find '»** men who c aim to have been cured by it, for they are men
of good stand ing and unquestioned honor among their fellows, whether
in . nervous troubles, which medicine cannot breach; in Rheumatism,
Kidney v >or "s%j^^ other organic weakness,' loss of i manly power or troubles
of the female V^^K^" sex,' Dr. Sanden's Electric Belt will cure after the failure
of all other '. ' remedies. / • '■■■ ". .
ANOTHER WONDERFUL CURE.
, DR. BAXDEX-Dear Sir: When I bought your Belt YZJ Jit^P^Sl & 0 I r/gaK mv
heatih, beiß: broken down entirely. physic* ly; «nd mentally tn<arac.ta:ed, belna unable to do SI
work and tortured wlih the !dea mat there was' no hope for me v I had a severe pain In my b ,rfc
: the t me. I had tried so many doctors without deriving auy good- result from any of Uiem tif.- i
d-d I*.. nothing of that kind cod ddo anything for me. .Now, sir. after a fair aud thorou^ tr aY or
your Beit lam completely restored to my old health. I never felt better In mv i!f°- am r«rftl»t?v
able ip do all my work as it should" be done, and ready for anything. I will reconVmenTvour
cheerfully to auy one «ffllcu>J a< I was. Yours trul/. : ; -,'■,. ■■..-?-■■' U W l^lsTftv lB * U
V : FoiemanS:. -Nicholas Ho^lXaundrr; residence 835 Castro' street. Sao Francisco.
DR. SANDEN'S ELECTRIC BELT
Offers to sufferers a means of a cure which is certain in its results. ; It never fails when
there is the slightest chance of cure. If you have tired of drues try it. R.Jri
Sanden's book, "Three Classes of Men, free, sealed. S y Read Dr -
; v ;' /l-'SAKrEiilNr^BXißOTiuo' CO ■' •
632 MARKET ST., } OPPOSITE PALACE MOTEL, SAN FRANCISCa
Office hours— B A. M. " to 8- P. M. 1 ; Sundays, 10 to I. Los Anialo* 'om ii« "a* c^ .To .
way; Portland. Or.. 253 Washington street; WnTer .-Ctolbt^SStartSiußrt^. 8011 " 1 *"**•
hOlK— Atake no mistaKv iv tne number— Q3g Maikei stre«. «reeu
DR. SANDERS' ELECTRIC TRUSS CURES RUPTURE.
> ■■■>«■» >UK Ub RUPTURE.
rented B.anche at the time of her disappear
aaCe" King's Testimony Dissected.
V Georeo R. King, upon direct examination
toft he Sle testified that when ne returned
P Q. ICe "VYhen : you returned what occurred
U A n? ''I met Durrani in the vestibule of the
church by the front door and hetoo L .he
seltzer and took a do^e of it. He went into
the Kitchen to do that." _nf W t
'I ne wituess responded : "I did so testify, l
don't think that testimony was fO; Tt . c ■"t
the cross-examination I w:is asked it he was
not lying on the platform, and that creniea a
doubt in my mind, and now I am not sure
eitner way." The witness would have had me
undoubted right to have read his test.mony
given upon the examination, for the I'U r P c
of refreshing his memory. (0. C. P., bee. -U4/.J
Svch a transcript n.a ut le»st be resyde<i «*j
a .rivHte mem<>randi:m. (Reid v. Ke;d, »/
C«I., '206.) Wh. n a witness culled by a purty
fails to testily to matters previously wlthia
his recollection, or gives evidence m iipuareut
variance with thnt formerly given, ii is not
incumbent upon tnepaity producng the wit
ness to wait ;or the. assaults of ihe cross-ex
aminHtion to expose seeming inconsistencies
and discrepflncies. While he may not impeach
hi» witn. ss (suvinj; under c rtain exceptlonaH
circu:nstunces) he may with propriety refresh
his recollection, to the end that the witne.-s ;md
his present evidence may both be put fairly
and in Uieir proper light Dvfore the jury. The
answer above quoted nffords a good illustra
tion of th.s. The Witness ndnnis the discrep
ancy between his former and his present testi
mony, and c.indidly exp.a ns ii as arisins
from a doubt created by his former cross-ex
amination. There was here no imnropiieiy,
and no injury to defendant.
The Janitor's Statement.
C. The janitor ot the cliurch was asked,
upon direct-examination, U uny one besides
h'mself had a key to his room. He replied:
"I have sometimes left my room door locked
and found it open ; therefore, I concluded that
some one hud a key to it." The refusal of the
court to strike this answer out is assigned hs
error, "because by*ts nature the answer only
had a tendency to cloud the minds of the
jury," and "necessarily injured the case of de
lendant." \\e are unaoie to porceive any force
in these objections.
H. The body of Blanche Lament wns found
nude and prune upon its bur k, with- a small
wooden block upon each side of the head, ap
parently us^d to hold it in an upright posi
tion. Dr. Charles E. Farnum was culled for
the people and testified that he was the
Demonstrator of anatomy at the Coopei- Medi
cal College, whioh defendant attended, and
that wooaen bi> cks were used Jor purposes in
relation to deßd bodies. He was next asked:
"For what purpose ure they used?" Ot jeetion
was made mat the question was irre.evant,
Immaterial and incompetent for any purpose.
Thelii.e of proof sought to be established
by the prosecution whs quite ttpparent. It
was an endeavor to show by me demonstrator
of anatomy under whom defendant was study
ing some technical and peculiar use of wooden
blocks in connection witn dissecting-room
corpses similar to the use made of blocks about
the he«d of the body of the dead girl. The
court could not foresee the answer and prop
erly overruled the objection ; for if the propo
sition could De establisned. it was clenrly com
petent lor the psi p.e to do so. In this, how
ever, there was a signal failure. The answer
disclosed no possible coi. section between the
facts in the case ot the dead girl aad the cus
tom of tne dissecting-room. Wliiie the ques
tion was pertinent, the answer therefoie failed
to luruish the required proof. It would un
questionably have been stricken out en mo
tion 01 the defense. But no motion was made —
doubtless because the answer not only worked
no Injury to the defense, but was an affirma
tive advantage to it
A Hypothetical Case.
The record next discloses the following ques
tion, objection, exception aud answer:
'•Q. Let me put a hypothetical case to you
for a moment: Suppose you had in your cus
tody or care a body which hail but recently
died, and it was still almost warm with nio.
You are acquainted with anatomy and sur
gery, and you know that in a certain length of
time rigor mortis would set in, when the body
and the members of the Dody would become
■stiff. Mow, II yon wanted to keep the nead— *■
tho face and neck — in an upright p jsit.oa, in
a straight position, not turned to one side or
the other, what would you do in order to keep
it in that position ?
"Mr. Deuprey— Wo object to that a? net a
hypothetical question involving any elements
iv this case.
"A. I would place it first in the position in
Which 1 wanted it, and if it did not remain
there I would prop it by supports in the de
sired position. My lust answer is what las an
individual would do."
The objection, it wiil be noted, is not upon
the ground tint the inquiry is not a subject
of expert evidence, but is based upon the one
proposition "that the hypothetical question
does not involve any elements in the case."
In strictness, therefore, this consideration
might begin andemt with a disposition of tne
sineie ground of objection urged, and when it
appears, us by fair inference it diu-s, thnts me
one hwd murdered the girl, and that some
one was present with her still warm body, and
that some one placed the blocks for the pur
pose of holding the head upright.it certainly
cannot be said that none of the elements of
the ease were involved in the hypothetical
question. Indeed, while counsel for tne ap
pellant, arguing this proposition, strenu
ously insist that, "There is no evidence
in the record that any person wanted to keep
the head, the face or the neck in an up
right or any position, or in a straight posi
tion, not turned to one side or ;he other;
there was nothing in the way of circumstance
or in the wuy ot iact established that would
permit the presumption of the conditions
lorced into the so-called hypothetical ques
tion," we need but tur.i bacK four pages of
their brief to find the curiously destructive
dec aration that, "The fancy struck tne mur
derer ot this girl to place the heart in a cer
tain position — and he did the most natural
thine in the world, picked up a couple of
sma. 1 blocks, evidently lying near, to hold the
head iv the position desired."
Moreover, a hypothetical quertiou need not
embrace all the facts in evidence, or even be
limited to facts proved. It must be based
upon facts tn evidence, but inny be addressed
to any reasonable theory which may be taken
ol them. In Filer t?. N. Y. R. Co., 49 N. V.,
46, it is is well said: I- It is the privilege of
counsel to assume, within the limits ot the
evidencp, a:iy state of facts which he claims
the evidence justifies and base the opinion nf
experts upon the facts thus assumed. The
facts are assumed for the purpose of the ques
tion, and fo- no other purr>o<e."
In •Thompson on Trials" (Seo. 604) the rule
is thus aptly and succmtly ,-tated : ■•Ttte rule
then is that the hypothetical questions must
be baseu either upon the hvp,,thesis of the
truth of ail the evidence, or upon a hypothesis
Continued on Eleventh Page.
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Great Americaiilnißortina Tea Co.
MONEY SAVING STORES:
1344 Market st. 146 Ninth st.
agio Mission St. aiB Third st.
140 Sixth st. 2003 Filltncre at.
617 Kearny st. 965 Market st.
1419 Polk st. 3006 Sixteenth st*
cii Montgomery •▼»». 104 Second st.
Ma Hayes st. 3285 Mission St.
_•. S3 Market sfc. (Headquarters), S. P.
iog3 Washington st. 616 E. Twelfth st.
Ul 8«3 Pablo aye. ' 917 Broadway, Oaklcnl .
135S Park at.. Atameda.
TUESDAY MARCH 9. 1897,
i At 12 o'clock noon,
AT OUR SALESROOM, 638 MARKET ST.
v-- YT. 81330 I'er Annum.
8. side (Nog. 1438. 1437, I*B9 »nd 1441) of
McAllister st., 87 :B feet E. of Scott-Handsome
bav-windov buildings of 4 French flacs, with moi-
ern improvements: in fine condition; with base-
ment; cement walk; btreet in bitum'.nous pave-
ment: McAlllster-st. and other crtbles: examine
this lor an investment: lot 50x100 ftet.- '
S. line (Xos. 2317 and 2221) of Jackson st.
130:6 fe?t W. of Buchanan— cottages now on
the propeity; eieyant location for a fl:i» restaence •
cement stone walk; street in bituminous rode- 4
car lines: examine this for a choio residence-
double lot, 60:6x100x127 feet.
Presidio Height*. " \
SW. cor. Sacramento and Walnut sts.— Bay-
windowed building: -J French us of 7 and "5
rooms: store and 4 rooms: full rents. $60- cement
wa and bituminous pavement on Sacramen.o
St. : Sacrameato-sl. cable: corner lot, 23x100 feet.
SW. line (XO3. 444 and 446) of Seventh st. KW
of Bryant Front b.iiding. •_' French fla's: rear
building, 1 tenement: full renis, $32; .em-n:
walk: street basalt rock; Bryan. -st. c ectric cars*
lot 25*85 feet.
Castro Heights Residence.
\V. line (No 1020) of Castro st. 185 feet S. of
23d— Modern 2-siory, bay-window residence of 8
rooms and bath: handsomely decorated and pa-
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Large Corner Lot..
■ NE. cor. of Army an<l Noe ss — Good view; a
Urge corner lot; s.ojU speculation: -sec tbU; mm; >
bfe add; Castro-si, cable: lot bOx 114 feet. I
Mission Large t;esidpnce Lot. ' I
K. line 0f.22d St.. E. of Sanchez— Grand view*
must besoid: Mission and 2»'.n st, electric: lar-«
building lot, 60:1 lxl 14 feet -
Western Addition Residence Lots.
W. line of I asuna st.. 30 at d 90 f-« N. of Lom-
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Government reservation; lots 80x1 lv fen each.
15th Street, <e»r Market.
8. line of 15th St., W. of Noe-2 lots." all ready to
build upon: only •1% block* . from Market st. •
pleasant surroundings; rare chance tor a bailJer-
must be sold; •U^stro and FUlmora st. roadi; lots
Business Lot on 24th Street:
N. line of 24th st, K. of FoUom-An "elegant
business lot to impiove with - stores below and
French fl»is above: street in basalt r.ck; severa;
electric roadi; largo lot. 37:6x!01> ie«i.
Ocean View '
S. lin« of Sagamore at., w. of Capita!— 2 iota
near steam depo./ and electric roads: all ready to
bnild upou; pleasant surroundings: large .ot, oox
1-5 feet. - ■ /■'.■-, ~. '■ ■■■.-.■ - ,
AnhbuiT Heights ;,..«..
NE.'cor. of Ash bury an i 18th st*.— 3 elegant
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land view; a 1 ready 10 ouhd upon: heauiliu loca-
tion tor a home; examiue tt>i««; Ashu.;ry st. sew-
ered: >. F. ana S. M. e;e< trie- real; corner lot, '-'Sx
90; inside lots, 25 by 90 and 100 :eet.
, EASTOX. KLORIDGE. « CO.,
638 Market st. Auctioneers.
— — — _________^_
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! SS !■'■«•« Io ?i Tena ' reasonable. ■■■ Hours. !':■>•! f
Uonf« Mt H 0l!T > 'Sunday*. 10 to 12. Oms-.ilta- T
. Uonlree sacredly confidential. Call or address
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