Metropolitan News-Enterprise


Tuesday, December 26, 2006


Page 7



Judge in 1895 Orders DA to Show Cause Why He Should Not Be Ousted




Twenty-First in a Series


It couldn’t happen today. You just won’t be reading about a judge of the Los Angeles Superior Court ordering District Attorney Steve Cooley to show cause why he should not be ousted from office based on spurning a citizen’s request to file charges against some alleged malefactor.

Nor might you expect reports of Los Angeles City Police Chief William Bratton deriding Cooley based on his laxity in prosecuting certain misdemeanors.

Yet, such scenarios have occurred in this county…though not in the time of Cooley and Bratton, and not within anyone’s personal memory.

On April 5, 1895, a judge of the Superior Court, Walter Van Dyke, ordered the district attorney, John A. Donnell, “to show cause why he, the said Donnell, should not be deprived of his office of district attorney of said county” because he had refused to file criminal libel charges against Harrison Gray Otis, president, editor, and general manager of the Los Angeles Times.

Acting under statutory authority then in effect, Van Dyke ordered the DA to appear in court on April 12 to address the allegation of “refusing and neglecting to perform the duties pertaining to his office as district attorney.”

It was two years later that Donnell publicly incurred the wrath of the chief of police, John M. Glass.

The article which gave rise to a citizen’s demand that Donnell secure the arrest of Otis was published Feb. 17, 1895. The headline reads, “A QUEER LOT. ‘THAT’S WHAT!’” The next deck says: “BELMONT HALL AND ITS NEW BREED OF FAKIRS.”

The investigative report tells of goings on in a “large building,” formerly used as a college, in “the western part of the city.” (It’s not referring to West Los Angeles, but to what was then terrain on the western edge of the city’s core. The hall was at First Street and Belmont Avenue—now Beverly Boulevard and Belmont—a few blocks west of the Belmont Learning Center project that has spawned controversy in recent years, partially constructed at First and Beaudry.)

Belmont Hall is described in the Times as a “queer institution” where the 60-or-so “inmates” (residents) are slaves to the “peculiar doctrines” of Josephine Holmes—a woman of “pretended powers” and “hypnotic influence”—and her two “accomplices.”

The article says of Holmes:

“Her views on the question of marriage...are so startling and original...that the Times regrets the fact that they are a trifle too lurid for publication in its columns.”

The expose—gained by a reporter posing as a disciple—goes on to say:

“The main point in her teachings is the complete paralysis of the brain. Her victims are forbidden to read, write or think.”

The object of the prescribed mental inactivity is to attain “a state of innocence and purity,” the account explains.

Dalton Wheeler—who filed the accusation against Donnell—was not mentioned in the Feb. 17 article, but was identified in a follow-up report the next day  as among the “membership of the community” at Belmont Hall.

An application for the citation to Donnell was presented to Van Dyke on Thursday, April 4, and was taken under submission. That day, the Evening Express quoted Donnell as saying:

“It is a case where a man wanted to use criminal courts for personal spite, and I refuse to allow it to be done. I did not see anything criminal in the matter, as it was brought to my notice, and I refused a warrant upon these grounds. If I would issue warrants upon every complaint that is made to this office I would bankrupt the county inside of three months. I have not been served with the papers as yet, and cannot say what my answer will be, but there is absolutely nothing in the charge that I have neglected my duties in this case nor in any other.”

The citation to appear was issued the next day.

A Times’ editorial on Saturday, April 6, declares that while the newspaper (which had endorsed Donnell for election) “believes the District Attorney did neither less nor more than his duty in the matter, it would upon no conditions have desired him to deviate a hair’s breath from that duty,” adding:

“Mr. Donnell owes The Times nothing, and The Times owes him nothing.”

A news account in that Saturday edition says that Van Dyke’s action was “[s]omewhat contrary to general expectations.”

The article quotes Donnell, who was served with Van Dyke’s order the day it was issued, as saying that he met with Wheeler and two of his compatriots on Feb. 19. At that time, according to the DA, Wheeler “said that if I refused to bring the suit he would get even with Col. Otis by stepping up behind him with a baseball bat and doing him violent injury.”

Donnell recites that he responded, “I would surely issue a warrant then, but it would be against him, and not Col. Otis.” The quote continues:

“He then accused me of being either a knave or incompetent, and breathing threats of vengeance, left my office.

“Personally, I cannot believe that this matter is worthy of personal consideration on my part, for I know that I am right in the stance I have taken.”

Yet, Van Dyke did see the matter as one requiring the court’s consideration. The proceeding was brought under Penal Code §772, which said:

When an accusation, in writing, verified by the oath of any person, is presented to a superior court, alleging that any officer within the jurisdiction of the court…has refused or neglected to perform the official duties pertaining to his office, the court must cite the party charged to appear before the court at a time not more than ten nor less than five days from the time the accusation was presented; and on that day, or some other subsequent day not more than twenty days from that on which the accusation was presented, must proceed to hear, in a summary manner, the accusation, and evidence offered in support of the same, and the answer and evidence offered by the party accused; and if, on such hearing, it appears that the charge is sustained, the court must enter a decree that the party accused be deprived of his office, and must enter a judgment for five hundred dollars in favor of the informer, and such costs as are allowed in civil cases.

The “official duty” Donnell allegedly neglected was that set forth in Political Code §4256: “to institute proceedings before magistrates for the arrest of persons charged with or reasonably suspected of public offenses institute proceedings before magistrates for the arrest of persons charged with or reasonably suspected of public offenses, when he has information that any such offenses have been committed.”

Wheeler’s lawyers argued that once a citizen had leveled a charge, the district attorney was, in light of that language, obliged to initiate criminal proceedings.

“In connection with that language,” Van Dyke held on April 24 after hearing testimony from both sides and argument by an attorney for Wheeler, the DA must seek an arrest warrant “when he is satisfied that an offense is committed and not otherwise.”

The Times’s article reporting the day’s proceedings quotes the judge as saying that when a district attorney is asked to launch a prosecution, he should proceed in the same manner as an “honorable attorney” whose private client wants him to bring a lawsuit...“that is, he should investigate the matter thoroughly and, and if, upon a full and fair investigation, he is satisfied that that the prima facie case that is presented will be overthrown by the defense, it is his duty to say so, no matter who applies for redress....”

Van Dyke is also quoted as observing that a jury “would probably find that the matter charged as libelous was true and published with good motives and for justifiable ends, entitling the accused to an acquittal,” meaning that “the District Attorney discharged his duty when he acted as he did in declining to institute proceedings.”

An April 25 editorial in the Times comments:

“Judge Van Dyke’s decision in the action brought by Wheeler and others to oust Dist.-Atty. Donnell from office, is a clear and forceful statement of the law governing the case. In words whose meaning cannot be misunderstood the Judge shows that the District Attorney is not a mere automaton to be manipulated by every person with an imaginary grievance, but that he is invested with certain discretionary, and even quasi-judicial powers, which he is to duty-bound to exercise in cases such as those presented in the case under consideration…. 

“Thousands and tens of thousands of dollars are saved to the county annually by the refusal of the District Attorney to issue complaints to every irresponsible crank who thinks he has a grievance against somebody, but is not sure enough of his grievance to test its validity in a civil action, where he will have to pay the expenses of litigation if he loses.”

An April 26 report in the Express begins:

“Since the airing of the Belmont Hall episode Major Donnell and his merry men seem to have engaged in an agreement to issue any and all complaints as fast as made to them.”

According to the newspaper account….on application of a youth, an assistant district attorney obtained a warrant for the arrest of a “John Doe” who, it was alleged, “did willfully, unlawfully and felonious steal, take and carry away four bottles of soda water, the property of R. F. Henry, of the value of twenty cents.” (A “felonious” theft of an article worth 20 cents?) Anyway, police officer ascertained the identity of the Doe and brought him and his sister, determined to be the true culprit, into court. “Doe” was a 5-year-old; his sister, age 4, admitted coming upon, and consuming the contents of, two bottles of soda pop. The need for a jury trial was averted when the deputy district attorney withdrew 20 cents in coins from his pocket and made recompense to the victim.

“The District Attorney and his trusty staff of deputies are jubilant over the arrival of a telegram from T. H. Ward, clerk of the Supreme Court, saying: [¶] ‘Appeal dismissed, Wheeler against Donnell. We all shake.’ ”

So begins an article in the Times on Jan. 9, 1886, reporting the dismissal of Donnell’s appeal the previous day.

The court said in a 5-2 opinion, with the dissenters filing no opinion, that the action against Donnell was criminal in nature, and that appellate jurisdiction doesn’t exist in any criminal proceeding not prosecuted pursuant to an information or indictment.

Holmes brought a federal action for libel against the Times and others. At 5 a.m. on April 7, 1897, a jury that had deliberated all night unanimously found for the defendants.

Van Dyke, who had been one of the reorganizers of the Los Angeles Bar Assn. in 1888, was elected to the California Supreme Court in 1898, running on a “fusion” ticket comprised of Democrats, Populists, and members of an offshoot GOP group which he had joined, the Silver Republicans. The Times called for the election of a straight Republican ticket.

Penal Code §772 was repealed in 1929. The state’s criminal libel laws were declared unconstitutional by the Court of Appeal in 1976.

The police chief, Glass, hit the DA with a broadside on April 21, 1897, publicly complaining that the police could not crack down on dives on Main Street that were fleecing customers visiting from rural areas of the county because of non-action by the District Attorney’s Office. An article in the Times on April 22 quotes him as saying:

“I am perfectly aware that the people who operate these places are continually obtaining money from visitors under false pretenses, but in the absence of any warrant from the District Attorney the police are powerless to move in the matter. Attempts have been made to induce District Attorney Donnell to issue complaints against these people, but he hasn’t, for some reason, been able to see his way clear to comply with such requests. The police will act soon enough if the proper authority is placed in our hands.”

Donnell’s response to such attacks by Glass was that he was compelled by necessity to concentrate on felonies and on civil cases. (The work of a DA then included suing on debts to the county and defending the county in lawsuits against it.) When James McLachlan was in office as district attorney (1889-1893), there was a third less workload than the present one, he pointed out, and McLachlan had six deputies while there were now only five.

And, he wondered, shouldn’t the city attorneys in the county, not he, be concerned with prosecutions of misdemeanors in city police courts? He posed that question to the state attorney general, William F. Fitzgerald.

Tomorrow, I’ll relate Fitzgerald’s response and tell of the continuing spat between Donnell and Glass.


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