Wednesday, July 12, 2006
Page 15
PERSPECTIVES (Column)
County’s Third District Attorney Was Army Captain, Alcalde, Judge
By ROGER M. GRACE
The Los Angeles County District Attorney’s Office website offers brief biographies of the 36 men who have been in charge prosecutorial efforts since the office was established in 1850. This is the second in a series of columns on past DAs inspired by that website.
KIMBALL H. DIMMICK was Los Angeles County’s third district attorney, serving from 1852-53—a period when the county was a fledgling entity, its denizens high-spirited and impulsive. The times were raucous and rowdy, brawling and bawdy. It was the Gold Rush era of vigilantes and hangings, booze-guzzling and gunfights, gambling houses and whore houses.
Dimmick, somehow, fit in.
An article in the American Whig Review for March 1851 tells of his life as a soldier, politician, judge and lawyer.
Born Aug. 5, 1812 in New York, Dimmick
studied law in an attorney’s office and was admitted to practice in New York
after passing the state’s bar exam in 1842. He became brigadier general of the
state militia, and when the 
Mexican-American War broke out in 1846, “he was
stimulated by martial spirit and the love of adventure to raise a company of
volunteers for that service,” the article says.
That company—Company K—became part of the First Regiment of New York Volunteers (led by Col. Jonathan D Stevenson). In March 1847, the ship which included Company K, led by Captain Dimmick, arrived in San Francisco. According to the magazine piece, the New York regiment, along with one artillery company and a segment of another company, “quelled all uprisings of the Mexicans” in the Bay area “and literally conquered them into peace.”
Although President James K. Polk on July 4, 1848 announced the end of the war, news traveled slowly across the continent. Dimmick’s diary entry for Aug. 10, 1848 read: “Glorious News of Peace received and an order to discharge the 1st N.Y. Regt.”
Company K was discharged five days later; Dimmick traveled briefly through parts of California; he then settled down in San Jose where he was elected in December as “alcalde” and “judge of the first instance.”
Those offices, of Mexican origin, were maintained during U.S. military rule of California (from 1846-49). An “alcalde” was more than a mayor, though the extent of the powers do not appear to have been well-defined in writings and were perhaps better defined by the extent of the authority actually asserted and exercised by the office-holder in a given pueblo. Under the adopted Mexican system, a “judge of the first instance” presided over civil, criminal, and admiralty matters. An act of Feb. 28, 1850 provided that cases pending in courts of first instance would be transferred to district courts, as soon as those courts were formed.
Dimmick was not a man who could be described as “gentle.” If he had been, he probably would not have survived in his environment. His diaries as an Army captain include his matter-of-fact recitations of would-be deserters being flogged, with note made of the number of lashes inflicted. And as a judge, he was hardly driven by mercy.
One of his first acts after gaining office in San Jose seemingly entailed functioning both as judge and prosecutor. The article in the American Whig Review relates, with approval:
“California was at this time in a state of entire confusion. An immense number of foreigners had arrived in the country. Nearly all the United States troops had deserted, and the vessels entering the harbors were left without seamen. There were organized bands of highwaymen to rob those returning from the mines. Murders were frequent, and magistrates dared not arrest the culprits. The first official act of Judge Dimmick was the issue of a warrant to arrest three ringleaders of a gang for the murder of two men returning from the mines through the district of San Jose. The prisoners were apprehended and committed. A bill of indictment was found against them for highway robbery and murder. Judge Dimmick gave them summary trial, and on their conviction sentenced them to immediate execution. Before suffering the penalty of their crime they confessed to the murder of five individuals. This energetic enforcement of the law was like an earthquake shock to California, and contributed more than aught else to preserve order and throw a shield over human life throughout her wide borders.”
The facts set forth in that article differ in two significant respects from those stated in a news article in the Modesto Bee on Dec. 17, 1848. According to the newspaper, the defendants had not committed murders, and there was a jury. The article says:
“A regularly empaneled jury yesterday convicted three men accused of assault with intent to kill in the highway robbery of two miners here about a week ago.
“The evidence of their guilt being very clear, Alcalde Kimball Dimmick forthwith sentenced them to be hanged publicly tomorrow.”
It goes on to say:
“Captain Dimmick took vigorous charge of the case upon his election as alcalde a few days ago.”
Whether the magazine article or the newspaper account is correct as to the particulars, what is significant is that in those times, appeal rights did not, at least as practical matter, exist. (Judges of the “second instance” and “third instance”—that is, appellate court judges—were not being appointed.) And a judge of the “first instance” who ordered the arrest of suspected malefactors, tried them a week later, and had them hanged the next day, was hailed as a hero.
According to an 1881 book on the “History of Santa Clara County,” Dimmick attended the hanging of a man he had sentenced to death.
But these were, after all, the early frontier days; California was under military rule; and U.S. constitutional guarantees had no applicability given that California was not even a territory, let alone a state.
Albert Williams, a Presbyterian pastor, sets forth in his 1879 book, “A Pioneer Pastorate and Times,” this commentary on Dimmick as a judicial officer:
“This official seemed quite at home in his chief place of authority, to which not a little dignity was imparted by reason of the gold-headed staff of official rank in his possession, which had received the benediction of the Franciscan Fathers. To this cane, as the Alcalde informed me, was given such popular respect, that, in the hands of a lad bearing an order of arrest, it was sure to hold and unresistingly lead a culprit to the [jail]. An instance of a special form, in the exercise of judicial authority, occurred at the time of this visit. A Californian in the vicinity of San José was found guilty of a misdemeanor, and the occasion was availed of to inflict the penalty of banishment upon the offender, according to a Mexican custom. Captain Dimmick seemed not loth to follow this precedent; and, for some reason, prejudice against the place or otherwise, yet with a gratification which was undisguised, by virtue of his authority, he sent the unfortunate criminal, in banishment for one year, to Benicia!”
Why would Dimmick have harbored “prejudice” toward Benicia, located in what is now Solano County? This is sheer speculation, but…Dimmick had been a prime mover for a convention to draft a constitution for the forthcoming state or territory of California, was a delegate from San Jose to the 1849 constitutional convention held in Monterey, and, though only 34, was chosen at the outset of the convention as temporary chair. Reports of the convention show that a rival from Benecia, Robert Semple, beat him out for the post of permanent chair.
Dimmick aspired to higher judicial office—in particular, membership on the soon-to-be-formed “Superior Tribunal of California,” in essence a supreme court. Military Gov. Bennet Riley, a U. S. Army brigadier general, had proclaimed on June 3, 1849 that such a court would be comprised of four members, one of whom would be from “the districts of San José and San Francisco.” Riley announced that elections to that court and other offices would be held on Aug. 1. While selections for Superior Tribunal judges and “district prefects” were legally his to make, he said, “being desirous that the wishes of the people should be fully consulted, the Governor will appoint such persons as may receive the plurality of votes in their respective districts, provided they are competent and eligible to the office.”
Dimmick was the only person from the San Francisco/San Jose area to make a bid for the office. Nonetheless, he lost. The victor, Peter H. Burnett, explains in his 1880 book, “Recollections and Opinions of an Old Pioneer”:
“Upon my return to San Francisco [from Sacramento], I found that during my absence, and without my knowledge, my name had been used as a candidate for a seat in the Superior Tribunal, and that I had received 1,298 votes, and Mr. Dimmick 212.”
The court met in Monterey in September and he was elected chief justice, Burnett says in his book, noting:
“The business before the Court was very small. No appeals had been taken; they were not common in those days.”
He did not again sit as a judge of that court. On Nov. 13, 1849, Burnett was elected governor, and assumed office on Dec. 20, becoming the first civil governor of California under U.S. rule. Dimmick swore in the new governor. (Burnett, who remained governor after statehood was attained on Sept. 9, 1850 but resigned before his term was completed, later served nine months on the California Supreme Court.)
Also on Nov. 13, the California Constitution was ratified, by a vote of 12,061-811, and members of the two houses of the Legislature, the House and Senate, were elected. According to the Dec. 29 edition of the Alta California, a weekly newspaper in San Francisco, the houses met in joint session on Dec. 22 to elect “state” officers, including the chief justice and two associate justices of the Supreme Court, supplanting the recently formed Superior Tribunal. (Although statehood had not yet been attained, the new governor and the lawmakers decided not to let that technicality impede them in setting up the state government.) Dimmick made a bid for the post of associate justice of the new court, but was not selected.
He proceeded to set up shop in Sacramento as a printer, a trade he had practiced while in college.
The Whig magazine article notes that on June 1, 1850, Dimmick returned to the east, having been separated for four years from his wife and remaining child (his younger child having died while he was gone).
The 1851 article questions “[w]hether he will again become a resident of the Golden State.”
Real estate magnate Harris Newmark, in his 1916 book, “Sixty Years in Southern California,” recounts Dimmick’s return:
“In 1852, after having revisited the East and been defrauded of practically all he possessed by those to whom he had entrusted his California affairs, Dimmick came to Los Angeles and served as Justice of the Peace, Notary Public and County Judge.”
The Los Angeles Star on May 14, 1853, said in an editorial that “[d]uring the whole week our vigilant District Attorney has been very active in prosecuting cases” involving sales of alcohol to Indians, reciting:
“A.W. Timms was fined $20 and costs for selling liquor to Indians, and Peter Collins for a like offence was mulched in the same amount:—all, before Judge Burrell....”
The editorial says that credit should go to Dimmick for the “earnest and successful prosecution” of the culprits.
After leaving the post of district attorney, Dimmick worked as a private practitioner. Newmark tells us:
“Dimmick’s practice was really largely criminal, which frequently made him a defender of horse-thieves, gamblers and desperadoes; and in such cases one could always anticipate his stereotyped plea…” which was:
“Gentlemen of the Jury: The District Attorney prosecuting my client is paid by the County to convict this prisoner, whether he be guilty or innocent; and I plead with you, gentlemen, in the name of Impartial Justice, to bring in a verdict of ‘Not guilty!’”
Newmark continues:
“Through the help of his old-time friend, Secretary [of State] William H. Seward, Dimmick toward the end of his life was appointed Attorney for the Southern District of the United States in California; but on September 11th, 1861, he suddenly died of heart disease.”
Copyright 2006, Metropolitan News Company