In re Mooney (10 Cal. 1, 1937)

THE COURT.

By this proceeding in habeas corpus, the petitioner, Thomas J. Mooney, seeks his release from the custody of the warden of the state prison at San Quentin, where he is confined pursuant to a judgment on a verdict finding him guilty of murder of the first degree.

At 2:06 P. M., on July 22, 1916, a devastating crime was committed in the city of San Francisco. At that moment a dynamite homb, concealed in a suitcase and detonated by means of a clockwork device, was exploded at Steuart and Market Streets, in the midst of numerous persons who either were watching or about to participate in a planned and publicized preparedness day parade. As a result of the explosion, ten persons were killed and forty or fifty other persons received serious bodily injuries.

Several days later, Thomas J. Mooney, the petitioner herein, Rena Mooney, his wife, Warren K. Billings, Edward Nolan and Israel Weinberg were arrested and, on August 2, 1916, jointly indicted for the murder of Hetta Knapp, one of the victims of the explosion. Seven other joint indictments, one for the death of each of the other victims who had then died, were also returned against the group. Billings was tried first, on the Knapp indictment, was convicted and sentenced to life imprisonment. His conviction was affirmed on appeal. (People v. Billings, 34 Cal. App. 549 [168 Pac. 396].) According to the testimony herein of the deputy district attorney who prosecuted Billings, the death penalty was not asked by the prosecution in his case, for it was determined by the prosecuting officials that Billings was a mere tool who did the bidding of Mooney, the petitioner in this proceeding.

Mooney was the second of the group to be tried. He likewise went to trial on the Knapp indictment. At the conclusion of thirteen trial days, during which one hundred and fifty-four witnesses were examined, the jury returned a verdict finding petitioner guilty of" murder of the first degree, without recommendation. A motion for new trial was thereafter denied. Petitioner was accordingly sentenced to be hanged. Subsequently, and on November 29, 1918, and following intervention by President Wilson, his sentence was commuted to life imprisonment. From that sentence he seeks his discharge in this proceeding.

Merely to complete the record as to the disposition of the other charges filed against the group, it should be pointed out that the later and separate trials of Rena Mooney and Weinberg resulted in their acquittal. The charge against Nolan was ultimately dismissed. The additional charges against petitioner growing out of the other deaths caused by the bomb explosion were all dismissed, except one. Said remaining indictment was permitted to remain dormant on the files until the year 1933, at which time petitioner demanded to be tried thereon. The then district attorney refused and failed to produce any evidence in support of said indictment and the trial court directed a verdict of not guilty thereon.

As will presently appear from the chronological court history of the Mooney ease, certain of the foundational matters upon which the present application is grounded arc not of recent discovery or proclamation. The. charge, of “frame-up”, now so vigorously urged by petitioner, even antedated petitioner’s trial and the production in court of any evidence against him. Subsequent to his arrest and prior to his trial, this charge was voiced through the publication and circulation of a pamphlet entitled “The Frameup System”. One needs only to examine the voluminous record in this proceeding to conclude that underlying the Mooney defense from its inception, has been a determined and vigorous campaign of propaganda and vilification directed with all its force against the state and its witnesses in an effort to accomplish the release of petitioner. The purpose of such a prolonged and determined campaign finds eloquent expression in many letters and documents written and received by petitioner and his associates over the years, and which have been placed in the record in this proceeding. The purpose is concededly “public agitation'to change the psychology of the people”, regardless of the guilt or innocence of the petitioner.

We now briefly narrate the court history of the Mooney ease. Following Mooney’s conviction and pending the determination of his appeal from the judgment imposing the extreme penalty, which sentence had not then been commuted to life imprisonment, the attorney-general, on July 30, 1917, filed in this court, a stipulation consenting to a reversal of the judgment of conviction. He was motivated to pursue this course by reason of the publication of certain letters written by one Frank C. Oxman, who subsequent to the writing of the letters, had appeared as a prosecution witness upon the petitioner’s trial. At a later point in this opinion we shall have more to say about the witness Oxman. In disposing of the point raised by the attorney-general’s consent to a reversal, we pointed out {People v. Mooney, 175 Cal. 666 [166 Pac. 999]) that the action of that officer was not based upon any claim or assumption that the record on appeal disclosed cause for a reversal, but was ‘ prompted by matters outside the record, disclosed after the proceedings were terminated in the trial court, which led him to believe that justice would be subserved by a retrial of the cause”. This court thereupon declared that “in view of the novelty of the suggestion of the attorney-general, and the serious question as to the right of this court under the provisions of our Constitution to grant a new trial except for error in the proceedings in the trial court, we will not consider the question of the advisability of the action suggested by the attorney general’s consent, except on formal application or motion by one of the parties addressed to the court, on notice to the other parties interested, including the district attorney of the City and County of San Francisco”.

Thereafter, the petitioner, while his appeal from the judgment was still pending, addressed a motion to this court requesting that the judgment and order be reversed “solely on the ground that the attorney general of the state has filed ... a stipulation and consent that, for reasons stated therein, such action should be had by this court, and that defendant joins in said stipulation”. The motion was opposed by the district attorney and denied by this court. In the opinion filed September 11, 1917 (People v. Mooney, 176 Cal. 105 [167 Pac. 696]), it was declared, in substance, that the only jurisdiction then possessed by the court under the Constitution was to determine whether there had been any error of law in the proceedings in the trial court, the determination of which, it was pointed out, had to be based solely upon a consideration of the transcript of the record in that court.

Subsequently, and on March 1, 1918, and after a consideration of said transcript, a decision was rendered on the merits which affirmed the judgment of conviction and the order denying petitioner a new trial. (People v. Mooney, 177 Cal. 642 [171 Pac. 690].)

Orderly consideration of the issues in this proceeding suggests that we presently defer any discussion of the evidence upon which the jury found its verdict of guilty and which upon appeal was held to be sufficient to support the same.

In the month following this court’s affirmance of the judgment of conviction, i. e., in April, 1918, petitioner moved the trial court to set aside the judgment and sentence on the ground that the verdict of the jury, the judgment, the order denying a new trial and the sentence were “procured through the willful nonfeasance, malfeasance and willful fraud of the district attorney and Ms assistants who conducted the prosecution . . . whereby defendant, was deprived of a fair and impartial trial and which prevented a fair submission of the cause”. The motion was denied and an appeal was taken. Pending said appeal, the petitioner sought from this court a certificate of probable cause to stay the execution of his sentence which at the time had not been commuted. In the opinion denying such certificate (People v. Mooney, 178 Cal. 525 [174 Pac. 325]), this court had occasion to refer to the “vague and unsatisfactory” affidavits filed by petitioner in connection with his motion to vacate wherein he had charged that the district attorney and his deputies prior to petitioner’s trial possessed certain information, assertedly unknown to petitioner at the time of trial, which it was charged seriously undermined the credibility of two of the prosecution witnesses (Oxman and Mellie Edeau, to each of whom more detailed reference shall hereinafter be made) and which information it was averred seriously challenged the truthfulness of their testimony. The opinion went on to declare that the “showing of fraud or misconduct on the part of the district attorney and his assistants in conducting the trial is of the weakest character, even if he were under any duty or obligation to disclose to the defendant all the evidence within his knowledge relating to the case”. However, this was not the only ground of the decision upon that occasion. In addition to the foregoing, this court also adopted the opinion of the trial judge where, in denying the motion to vacate the judgment, he declared- that the motion under the circumstances then presented was the equivalent of an application for the common law writ of coram nobis, the office of which writ is abridged, it was held, when statutory remedies exist of a character which had been available to petitioner, viz., motion for new trial and appeal.

In Mooney v. People, 248 U. S. 579 [39 Sup. Ct. 21, 63 L. Ed. 430], decided November 18, 1918, the United States Supreme Court denied certiorari to review the last cited decision of this court.

In 1921, the petitioner applied to the United States District Court for a writ of audita querela on the ground that his conviction was the result of a conspiracy on the part of the prosecuting officials. In support thereof he set out the Ox-man letters above mentioned and an affidavit of John MacDonald, dated February 7, 1921, as asserted evidence of the alleged perjury of those persons upon his trial, both of which matters shall hereinafter receive more detailed attention. The United States District Court denied the application on the ground that the writ was not available under California law.

Thereafter an application for a writ of habeas corpus was filed by petitioner with the United States District Court based on the production of assertedly perjured evidence upon his trial and the alleged suppression by the district attorney of evidence averred to have been material to the defense. The writ was denied. An appeal to the United States Circuit Court of Appeals was denied and the latter tribunal (In re Mooney, 72 Fed. (2d) 503, decided July 24, 1934) in denying a petition for probable cause and for an appeal, quoted extensively from the last cited decision of this court. Reference was also made to the denial of certiorari therein by the United States Supreme Court.

Three months later (October, 1934) the petitioner sought leave to file an application for a writ of habeas corpus with the United States Supreme Court, which proceeding was the forerunner of and ultimately proved to be the direct cause for the institution of the present proceeding in this court for a similar writ. In his application to the United States Supreme Court the petitioner alleged that his conviction was brought about solely by perjured testimony, knowingly used by the prosecuting authorities in order to obtain that conviction, coupled with the alleged deliberate suppression of evidence which assertedly would have impeached and refuted the testimony thus given against him. The attorney-general of this state, representing the respondent warden in that proceeding, and by way of return, demurred to the application on which the order had been issued therein directing the warden to show cause why leave to file the application for a writ of habeas corpus should not be granted. Upon well established rules of pleading the demurrer admitted, for the purposes of the proceeding on said return, the truth of the allegations of the application. It therefore appears to have been the theory of the attorney-general that even if those allegations were true, still the petitioner was without remedy in the Supreme Court of the United States under prior decisions of the state and federal courts. In other words, it was his theory, based on said prior decisions, that the requirements of due process had been satisfied upon petitioner’s trial in that he had received notice thereof and had a hearing thereon, with full opportunity to defend on all the issues, and that the alleged acts of the prosecuting authorities, even if established, would not have served to destroy the requirements of due process.

The admission by demurrer, of the charges so made by petitioner, without doubt had a controlling influence on the action of the Supreme Court of the United States in that proceeding wherein, on January 21, 1935, that court, in rejecting the attorney-general’s "narrow view of the requirement of due process”, declared (Mooney v. Holohan, 294 U. S. 103 [55 Sup. Ct. 340, 79 L. Ed. 791, 98 A. L. R. 406]) that "It [meaning due process] is a requirement that cannot be deemed to be satisfied by mere notice and hearing if a State has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance by a State to procure the conviction and imprisonment of a defendant is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation. ...” The court, in its opinion, then states that it is not satisfied that California "has failed to provide such corrective judicial process”, that "we do not find that petitioner has applied to the state court for a writ of habeas corpus upon the grounds stated in his petition here” and that "we are not at liberty to assume that the State has denied to its court jurisdiction to redress the prohibited wrong upon a proper showing and in an appropriate proceeding for that purpose”. (Italics added.) Leave to file the application for habeas corpm was thereupon denied, without prejudice, in order to permit recourse by petitioner "to whatever judicial remedy afforded by the State may still remain open”.

Shortly thereafter, and following the indicated course, petitioner again directed his attention to the state courts and filed an application for a writ of 'habeas corpus with the District Court of Appeal of the First Appellate District. In an opinion filed on May 14, 1935, in In re Mooney, 6 Cal. App. (2d) 730 [45 Pac. (2d) 388], a majority of the members of division one of that court denied said application. On May 31, 1935, petitioner filed the present application for a writ of habeas corpus with this court.

According to the recent decision of the United States Supreme Court in this matter, supra, it is incumbent upon petitioner in this proceeding, if he is to accomplish his release, that he establish by a preponderance of substantial, credible evidence not only that perjured testimony was adduced upon his trial, but also, if such be the fact, that it was knowingly produced by the prosecuting officials. Proof of both elements, perjury and knowledge, by a preponderance of credible evidence, is indispensable under that decision. It was recently so construed by the Supreme Court of Florida in Skipper v. Schumacher, 124 Fla. 384 [169 So. 58, 62-64], and certiorari was denied by the United States Supreme Court (299 U. S. 507 [57 Sup. Ct. 39, 81 L. Ed. 376].)

Therefore, proof of perjury alone, without satisfactory substantial proof of knowledge thereof or connivance therein by the prosecuting officials, can avail the petitioner nothing in this proceeding but would relegate him to the executive department. In passing, it may here be mentioned that he has made an application for executive clemency to each of four governors of this state, all of whom, upon independent consideration of petitioner's charges, denied a pardon to him. ■

We shall consider the charge of suppression of material evidence in so far as it ties in with or constitutes a part of the alleged frame-up in furtherance of which it is claimed that perjured testimony was knowingly produced by the prosecution.

As stated above, the present proceeding was commenced on May 31, 1935, by the filing with this court of an application for a writ of habeas corpus. Shortly thereafter, a writ was issued and made returnable before this court at a designated time. Certain preliminary points were disposed of and on August 5, 1935, A. E. Shaw, Esq., a member of the San Francisco bar, was duly appointed to act as referee in the matter for the purpose of taking evidence.

It is not uncommon to order a reference in habeas corpus proceedings when disputed questions of fact exist. {In re McCoy, 10 Cal. App. 116 [101 Pac. 419]; In re Matusow, 129 Cal. App. 76 [18 Pac. (2d) 72]; Ex parte Eagan, 18 Fla. 194; United States v. Corsi, 55 Fed. (2d) 360; Cooke v. Cooke, 67 Utah, 371 [248 Pac. 83, 84]; In re Meyer, 146 App. Div. 626 [131 N. Y. Supp. 380].)

The order appointing the referee defined the issues to which the evidence was to be directed, as follows:

“1. Did any witness who testified against Thomas J. Mooney in the trial which led to his conviction on the charge for which he is now deprived of his liberty, commit perjury as defined in Section 118 of the Penal Code of the State of California, that is, did such witness’ testify to any material matter which he knew to be false?

“2. In the event that such witness or witnesses did commit perjury, as so defined, did the representatives of the State of California, the District Attorney or any of his deputies or assistants cause or suffer such testimony to be introduced knowing that such testimony as given was perjured ?

“3. Did the District Attorney or any of his staff charged with the prosecution of Thomas J. Mooney deliberately, wilfully, knowingly or at all suppress or prevent the introduction of any evidence which, had it been given, would have been favorable to the defense of said Thomas J. Mooney?”

It was provided by court order that the body of petitioner, in custody of the sheriff, be produced at hearings before the referee. In the interest of orderly procedure, and to insure to petitioner a full hearing and a complete record for the consideration of this court, the practice was adopted, pursuant to court order, of permitting the parties to put into the record, by way of an offer of proof, all testimony or' other evidence to which objection might be sustained by the referee. This was in addition, of course, to all other properly admitted evidence. The hearings before the referee were for the most part held in the city and county of San Francisco. Hearings were also held in various cities throughout the United States, the place being determined solely by the residence or convenience of witnesses. Said hearings commenced on August 12, 1935, and extended to August 31, 1936, a period of approximately one year, during which time a record consisting of twenty volumes, containing 13,416 pages of evidence or proffered evidence and hundreds of exhibits, was made up. On August 5, 1936, the referee was directed to prepare and file his findings of fact, based upon the evidence adduced before him. His report and findings were filed herein on January 28, 1937. All material issues were resolved against the petitioner by the referee. On March 12, 1937, the petitioner filed his exceptions to the report and findings of the referee.

Before undertaking to narrate the evidence adduced by the prosecution upon petitioner’s trial and prior to a consideration of his present attack thereon, we deem it pertinent here to state that in our examination and consideration of this cause we have disregarded the ‘ Report and Findings of Fact of the Referee” on the issues involved. We have done so, not because of any dissatisfaction with the conclusions of the referee, but for the reason that both petitioner’s and the attorney-general’s proposed findings differ materially from those of the referee, and we have reached our determination of the cause upon our own examination of the record. Our findings and conclusions will be developed and disclosed as this opinion progresses. With the way so cleared by this chronological history of the case, we now address ourselves to the evidence upon which petitioner’s guilt was determined and his present effort to avoid its consequences.

We direct our attention first to the testimony of John MacDonald, given upon the trial of petitioner. MacDonald, then an itinerant waiter and seller of newspapers, testified, in substance, that he arrived on the southeast corner of Steuart and Market Streets at about 1:40” on the afternoon of July 22, 1916, the day of the explosion; that while standing on Steuart Street about 12 or 15 feet from Market Street, he saw a man, identified by him before the trial as Billings, walking from the direction of Mission Street toward Market Street on the west side of Steuart Street; that Billings was carrying a suitcase which he set down near the building line on the sidewalk near the southwest corner of Steuart and Market Streets; that Billings appeared “excited” and his head “was working on a pivot”; that after depositing the suitcase Billings walked to the corner and to the door of a saloon; that almost immediately another man, whom the witness subsequently and also prior to the trial identified as Mooney, the petitioner herein, came out and joined Billings; that they talked, looked at the petitioner’s watch and toward the Ferry Building and departed, separately, through the crowd and were lost to the sight of the witness; that the witness shortly thereafter left the vicinity and walked slowly down Market Street toward the Embarcadero; and that when he had walked approximately 150 feet he heard the report of an explosion. Other evidence established the time of the explosion as 2:06 P. M. The witness MacDonald also testified oh the trial that he “estimated” it was about five minutes after he (the witness) arrived at Steuart and Market Streets that he first saw Billings (computation reveals this to be at approximately 1:45 P. M.) and that he did not know the exact time Billings set the suitcase down. He was “positive” that Mooney was the man who came out of the saloon and joined Billings.

On cross-examination, defense counsel attempted to make much of an asserted change of time in the testimony of the witness given upon the prior Billings trial and upon petitioner’s trial. Inasmuch as a similar contention is here advanced and the alleged discrepancy in time is charged to and asserted to be the product of improper suggestion by deputy district attorney Cunha, who prosecuted Mooney, we shall pause at this point to consider the contention.

Upon the Billings trial, MacDonald testified, as to the matter of time, that he saw Billings ‘ as near as can remember 8 or 10 minutes to 2” and that it “must have been about two o’clock” when he set the suitcase on the sidewalk. We perceive no great variation in the story of the witness as regards the fixing of the time of the events narrated by him. In each instance, and upon each trial, it is apparent that the witness was not attempting definitely to fix the exact time of the occurrence of the events. MacDonald was merely estimating and approximating the time of the occurrences described by him. His testimony upon the Billings and Mooney trials is susceptible of no other construction. This is likewise true of his testimony upon the subsequent trials of Rena Mooney and Weinberg (also introduced into this record) where, in effect, he testified he (the witness) arrived at Steuart and Market Streets between “1:30 and 1:40” and that he saw Billings “about” five minutes later. We are of the opinion that no material variation appears in the testimony of the witness upon the several trials that would warrant any claim of corruption against the witness or the prosecuting authorities. Moreover, in asserting that a discrepancy exists in the time element between the testimony of MacDonald upon the Billings and upon the Mooney trials, and in charging the same to the prosecuting officials as part of an avowed attempt on their part to reconcile the time fixed by the witness in the latter trial with the defense of the petitioner which, if accepted, placed him several blocks distant from the scene of the explosion at or about the time the testimony of the witness MacDonald placed him at Steuart and Market Streets, petitioner has overlooked the fact that as regards the time element the testimony of the witness upon petitioner’s trial is consistent with and the same as that given by him before the grand jury that indicted petitioner and his co-defendants, which testimony before the grand jury was given prior to the trials of any of the indicted persons and at a time when it was not necessary for the prosecution to “meet” what was then an undisclosed defense. Before the grand jury, the witness testified that he arrived at Steuart and Market Streets “about twenty minutes of two” and shortly thereafter saw Billings and Mooney conducting themselves substantially as already set forth. The time so fixed by the witness on that occasion is identical with the time specified by the witness upon the Mooney trial and definitely destroys petitioner’s charge of collusion and corruption in the matter between the Billings trial and the trial of petitioner. Nor, for the same reason, may it successfully be urged' that an asserted change of time in MacDonald’s story was fabricated in the interim between the two trials in an effort to make it consistent with the testimony of the witness Oxman, to which testimony reference will later be made. This follows from the fact that upon the occasion of MacDonald testifying before the grand jury and fixing the time of the events observed by him at Steuart and Market Streets substantially identical with the time designated therefor in his testimony upon petitioner’s trial, the testimony of the witness Oxman constituted no part of the prosecution’s case for the reason that he had not then been located. In fact, Oxman had not been located at the time of the Billings trial and he did' not appear as a witness at that trial. In addition to what has been said upon the time element, we have the positive testimony of the prosecuting officials denying that they requested the witness to or had him change the time of the events described by him. They likewise denied any and all other claimed improper conduct with reference to this witness.

We turn now to other matters which the petitioner asserts challenge the credibility of the testimony of the witness MacDonald, as given upon the trial. On February 7, 1921, approximately four years after petitioner’s trial and conviction, MacDonald executed what may be termed an affidavit of repudiation. In the petition herein it is alleged that at that time MacDonald voluntarily called at the New York office of one of petitioner’s present counsel and after stating that he had perjured himself upon petitioner’s trial pursuant to asserted coaching given to him by the district attorney’s office, then and there executed the affidavit which since its execution in 1921 has constituted one of the principal props supporting petitioner’s case. Subsequent developments tend to indicate that MacDonald’s “voluntary” decision to purge himself was induced or at least influenced by circumstances that cast suspicion thereon. By this statement no reflection is intended upon counsel. We shall presently and specifically clarify the point. Later developments, as will be shown, likewise challenge the truthfulness of such attempted repudiation.

Sight should not be lost of the fact that in his affidavit, and up to the present moment, MacDonald has never retracted his testimony that he was in the vicinity of Steuart and Market Streets on the day of the explosion and observed two men, one with a suitcase, acting in the manner described by him at the trial. His belated repudiation relates solely to the exact time then fixed by him for such occurrences, and to his identification of Mooney and Billings as the individuals then observed by him. He avers that he was induced to falsify his testimony and perjure himself in these particulars under the guidance and instruction of the district attorney, his assistants and certain police officials. MacDonald repeated this repudiation of his testimony in the respects just mentioned in a later affidavit, bearing date July 12, 1930, wherein, among other things, he reaffirmed the 1921 affidavit. In his 1930 testimony before the members of this court, sitting as a commission, In the Matter of the Application of Warren K. Billings for a Pardon (210 Cal. 669 [298 Pac. 1071]) he also assumed to retract certain portions of his testimony given at petitioner’s trial, particularly having.to do with the time element and the identification of Mooney and Billings. Again, upon the present proceeding, when called as a witness by the petitioner, he reiterated his repudiation of the indicated portions of his trial testimony and testified that the falsity therein was induced by the prosecution. Being confronted with the fact that he had testified under oath in substantially the same manner upon five occasions (before the grand jury and at four trials) and had substantially reaffirmed his testimony in a letter, to be mentioned shortly, MacDonald at the 1930 hearing before the members of this court could assign no reason why his affidavit of repudiation or his testimony at that hearing should be accepted and believed in preference to his testimony given at the trials. He also conceded while on the stand in the present hearing that he could not expect any court, under all of the circumstances, to attach any credibility to his attempted repudiation. It is significant to note that less than a month prior to the execution by MacDonald of his first affidavit of repudiation, he addressed an unsolicited letter on January 11, 1921, to Duncan Matheson, wherein, among other things, he wrote: “What is all the fuss about Mooney again ... I will say if I was on my death bed and the last words from me, would be that he is guilty, and that what I swore to was nothing but the truth, and I am willing to take the stand tomorrow and swear to the same things.” Duncan Matheson,, the addressee of MacDonald’s letter, is now Treasurer of the City and County of San Francisco. He was formerly a captain of police and immediately after the bomb explosion was placed in charge of the so-called Bomb Bureau created to investigate the crime and track down the perpetrators thereof.

It is inconceivable that MacDonald could write an unsolicited letter to Matheson unqualifiedly affirming the truthfulness of his trial testimony and then, less than a month later, make an uninduced confession of perjury. An explanation for such a complete and radical change of attitude is to be found in certain events that preceded the execution of the first affidavit of repudiation. The explanation, in our opinion, is to be found in the testimony of Edward N. Nockels, given before the members of this court in 1930. His testimony was read into this record pursuant to agreement, and in order to serve the convenience of Nockels and thus not require him to be present at the hearings held herein before the referee in Grayville, Illinois. The testimony of Nockels, so read into the record, discloses that he was then the Secretary of the Chicago Federation of Labor and had been for twenty-seven years; that after the Mooney, -trial his organization sent out over the country pictures of the witness MacDonald in an effort to locate him; that MacDonald was located in Trenton, New Jersey, whereupon the Chicago Federation of Labor in January, 1921, sent one Jack Johnston there to observe MacDonald (the latter has always referred to Johnston as Thompson, the only name he claims to have ever known him by); that Johnston remained in Trenton for several weeks and roomed in the same place as MacDonald; that Johnston ultimately communicated with the witness (Nockels) and informed him MacDonald had confessed that he committed perjury upon petitioner’s trial; that MacDonald was brought to New York and, as already indicated, executed the 1921 affidavit of repudiation. The witness admitted that his organization thereupon paid Johnston and MacDonald each five hundred dollars and financed a trip for both to California and return, including transportation, compartment and expenses en route. After arriving here, MacDonald failed to testify before the grand jury, undoubtedly the purpose for which the trip was undertaken. Nockels also testified he did not know who paid the expenses of MacDonald’s 1930 trip to California when he testified at the Billings hearing and Nockels volunteered the statement that in the absence of other arrangements his organization again Avould have furnished them.

Since the execution of the 1921 affidavit of repudiation, MacDonald’s statements have been a sequence of inconsistencies, contradictions and obvious falsehoods. The members of this court so stated in a report to the Governor, supra, filed in 1930 in connection with the Billings application for a pardon. Since his first repudiation he has been a vacillating and inconsistent witness who has repeatedly contradicted himself in the expression of a series of patent falsehoods uttered in a vain and abortive effort to retract and repudiate his trial testimony, given at a time when he was free of the influences and forces which over the years have fastened themselves upon him.

His testimony in this proceeding is as unsatisfactory and as patently perjured as his 1930 testimony upon the Billings pardon application. While on the stand in this proceeding as a witness for the petitioner, MacDonald testified on direct examination that he did not s'ee Mooney or Billings at Steuart and Market Streets or any other place on the day of the explosion; that he testified falsely before the grand jury and upon each of four trials when he. said he. had seen them at that place; that he could not have identified them had Captain of Police Goff, then assigned to the Bomb Bureau, not pointed out their pictures in a book and said they were the “---they wanted”; that the first time he ever saw Mooney or Billings was several days later and while they were in jail; that upon that occasion he, in company with Goff, went to see Mooney in jail and the three of them spoke (this was contradicted by the petitioner himself while on the stand herein when he testified that nothing was said at the time by anyone); that Goff thereupon took him to the Bomb Bureau and in the presence of district attorney Fickert and others said, ‘‘he identified him” (singularly enough, the witness does not recall what he then replied, though he purports to detail other portions of the conversation); that the following day he was taken by Goff and the district attorney to see Billings at the Park Police Station; that he was told by Goff that the man he saw was Billings though he could not recognize or identify him; that Goff then told the district attorney, who had remained outside the building in an automobile, that the witness had identified Billings; that prior to the grand jury session and the trials the district attorney and his deputy Cunha told him that Mooney and Billings were the persons they wanted and to swear they were the two he had seen at Steuart and Market Streets; that in the interim between the Billings and Mooney trials Cunha told him to change the time (a matter already discussed) though, almost in the next breath, he testified that ‘‘I do not really think that anybody suggested to me that I change the time as to when I saw the suitcase put down, from about 2 o ’clock to about 1:45”; that he refused to testify upon the later Weinberg trial, as assertedly requested by Cunha, that he had seen an automobile at the scene of the explosion (this, apparently to cause his testimony to conform in this particular with that of the witness Oxman who testified upon petitioner’s trial); that he refused to so testify because “I just made up my mind then that I wasn’t going to swear that I did see an automobile there because there wasn’t any automobile there.” We pause here to state that this is a fair indication that the witness testified truthfully upon the several trials for if he refused to ‘‘cooperate” to the extent of testifying falsely as to the presence of an automobile at the scene of the explosion because he had not seen such a vehicle there, it is inconceivable that, merely because requested, he would testify falsely as to the identity of the persons he had seen there when in all probability such identification might lead to their execution.

Cross-examination of MacDonald herein resulted in the witness entangling himself in a series of contradictions which cast serious doubt upon his present testimony and leads to the conclusion that he is now corruptly attempting to undermine and destroy his trial testimony. During the course of such cross-examination, MacDonald again narrated the events he had witnessed at Steuart and Market Streets. Again, he fixed the time of his arrival there as approximately 1:40 P. M., which is consistent with his testimony given before the grand jury and at the Mooney trial. He testified herein that at the time of his arrival at Steuart and Market Streets, one short block west of the starting point of the parade, the parade had not started, an incident that would impress itself upon a witness and tend definitely to determine the time element. Other evidence fixed the commencement of the parade at 1:30 P. M. which tends to indicate that MacDonald must have been at Steuart and Market Streets at about that time.

In his effort to establish in this proceeding that he falsified his testimony upon petitioner’s trial as to the time element, the witness in apparent confusion contradicted himself several times. This matter is again referred to merely as furnishing a reason for rejecting his present testimony as unreliable. Finally, he testified that while Cunha requested him to change the time he failed to do his bidding. Obviously, this contradicts the averment in his 1921 affidavit wherein he stated that he had changed the time at the insistence of Cunha. As a matter of fact, the witness here testified that the averment of his affidavit was false in this respect. Yet, immediately following, and in almost consecutive sentences, he contradicted himself and testified herein, first, that he did change his testimony as.to time at Cunha’s request and, then, that he did not.

Another contradiction in the testimony of the witness herein appears when on one occasion he testified that Goff did not show him the book containing the pictures of Billings and Mooney on the day that he made a statement to the police (to be referred to later) and on another occasion he testified that both events transpired on the same day.

In the course of his direct examination, the witness testified that he received five or ten dollars at a time from the prosecution and that while waiting to testify at the several trials he was sent to a ranch for several weeks where he was paid three dolars a day. On cross-examination he stated that he was not offered or paid any money by the prosecution. As some explanation for his presence on a ranch, he admitted on cross-examination that prior to his going there red pepper had been thrown in his eyes as he walked in front of the Sutter Hotel in San Francisco and also that he had received letters threatening his life. This would appear to furnish ample reason for the prosecution to remove its witness to a ranch or any other place of safety.

The story told by MacDonald herein as to his association and connection with the mysterious Johnston (alias Thompson) and Nockels is too absurd and fantastic to commend it to serious consideration. He admitted having lived in the same hotel with Johnston and talking with him about baseball and sundry other subjects, to the exclusion of the Mooney case. In view of the explanation given by Nockels as to Johnston’s mission at the time, MacDonald’s statements are not entitled to any credence. In fact, as already shown, Nockels testified that Johnston had communicated with him and said that MacDonald had confessed perjury upon the trial. This is in utter conflict with MacDonald’s testimony herein. MacDonald also testified herein that he went to New York with Johnston, paying his own expenses, and was there introduced in a saloon by Johnston to Nockels, at which time they talked for several hours without any mention being made of the Mooney case. On cross-examination he admitted this testimony was in conflict with that given by him at the Billings hearing in 1930 wherein he testified: “We talked it over in there and he (Nockels) said, ‘Let's go up and see Mr. Cochran’ and I said ‘Yes’. So then we found out Mr. Cochran was sick and he says ‘We will go up and see Frank Walsh tomorrow morning’.” This prolonged silence as to the Mooney case continued, according to MacDonald’s story herein, up to the moment he appeared in the office of Mr. Walsh, one of petitioner’s present counsel, where he had gone at Johnston’s suggestion, for some apparently undisclosed purpose. While in said office he executed the 1921 affidavit upon which petitioner relies. In explanation thereof, he testified “I guess' Johnston told Walsh that I was willing to repudiate my testimony”. In the light of MacDonald’s earlier testimony in this proceeding that he and Johnston had not discussed the Mooney case, one necessarily pauses to inquire from whence did Johnston receive the information that MacDonald was ready to repudiate his trial testimony. Realizing the absurdity of his story, and in an apparent endeavor to bolster obvious weaknesses therein, MacDonald then went on to testify in this proceeding that he did “not know how Johnston knew that, but guess that Johnston must have read it or seen it in the paper” and this, apparently prior to any public repudiation of his testimony by MacDonald.

Another illustration of the present unreliability of MacDonald is found in the fact that he here testified that when he went to New York in 1921 he had no intention or idea of making a confession or an affidavit of repudiation, while at the same time he admitted testifying at the Billings hearing in 1930 that he “went to New York to make a confession to Mr. Cochrane”.

There are other circumstances which illustrate material variations in MacDonald’s attempted repudiation of his testimony and which prove beyond question that his testimony given in repudiation of his trial testimony is corruptly false and untrue. Among them are the many contradictions found in his testimony given before Lieutenant-Governor Carnahan a few days following his testimony in 1930. His testimony on that occasion, made a part of this record by petitioner, is not only self-contradictory in many particulars but likewise runs counter to his earlier testimony at the Billings hearing. A similar circumstance is presented by the testimony of David Murphy, a retired police sergeant, who testified that he met MacDonald in 1920 in Baltimore at which time MacDonald requested the witness to inform Captain Matheson that while there was some talk about his changing or repudiating his testimony, he would not do so but would again testify, if necessary, in the same manner as upon the trials.

The unsatisfactory and highly contradictory testimony of MacDonald upon this proceeding causes us to affirm our appraisal of him as expressed in the report filed in connection with the recent Billings application for a pardon, supra. We there declared, in part: “However much MacDonald may have sought to discredit himself and his former testimony by the making of such an affidavit, we are satisfied that placing his two conflicting statements together and considering each in the light of the circumstances under which it was made, the original testimony of John MacDonald as given with so much of circumstance and detail upon the trials of each of these men, within a short time after the occurrence of the tragedy for the causation of which they were being tried, bears the stamp of truth, while, on the other hand, this belated affidavit, wherein he undertakes with so much of intermingled untruth to cast discredit upon his former testimony bears the stamp of falsity, and that the substance and effect of this affiant's former positive and damning identification of both of these men as the perpetrators of this foul crime has not been thereby overthrown.”

Having in mind all of the circumstances and particularly the many contradictions in MacDonald’s testimony given in this proceeding, we may well sum up the matter, as did Mr. Justice Richards upon the Billings second hearing, by declaring “as our deliberate conclusion that the effect upon our minds of the production of John MacDonald as a witness before ns has been but to reinforce our former conclusion that his attempted repudiation of the testimony which he gave before the court and jury in the Billings and succeeding eases was so abundantly shown to be false, if not, as we believe, corruptly inspired, as to be utterly valueless for that purpose, and hence that the testimony of John MacDonald as given upon the Billings trial in 1916 [and the following-trials, including petitioner’s] and the truth thereof have not been successfully assailed or overthrown. ...”

In addition to the matters already referred to as lending credence to MacDonald’s testimony as given upon the several trials, the following circumstances, fully developed in the record herein, serve also to establish the truthfulness thereof and the falsity of the attempted repudiation. It appears that on the afternoon of July 22, 1916, a short time after the explosion, MacDonald told several persons with whom he casually came in contact that he had seen a man deposit a suitcase at the place of the explosion and prior thereto. In these conversations he described and repeated in detail the appearance and actions of the man and his confederate, substantially as he did upon the later trials. Several of these persons were called as witnesses in this proceeding by the respondent and related their recollection of MacDonald’s statements. At the time, MacDonald was advised to convey his information to the police. Accordingly, on the following Monday morning, two days after the explosion, MacDonald went voluntarily to the police department. This accounts for MacDonald’s presence in the ease and, quite naturally, precludes any charge being made that he was produced by the prosecution in support of an asserted “frame-up”. He thereafter told his story to police officials. He identified Mooney and Billings, according to the testimony herein of certain of those officials, from their pictures and their persons. Before the grand jury and upon the four subsequent trials he reiterated his story and positively identified Mooney and Billings as the persons he had observed at the scene of the explosion and acting in the manner described by him. Rigid and searching cross-examination by eminent counsel upon the trials left his story and particularly his identifications unshaken.

Moreover, at this hearing the district attorney and his deputies, who prosecuted petitioner and Billings, and captains of police Goff and Matheson, took the stand and denied the accusations made by MacDonald in his affidavits and in his subsequent testimony at the Billings hearing and in this proceeding. Captain Goff while on the stand herein testified that he met MacDonald at police headquarters three days after the explosion whereupon MacDonald narrated to him what he had seen and in a manner substantially the same as his testimony upon the trial; that MacDonald also designated the several persons to whom he had related his experiences on the afternoon of the explosion; that MacDonald, without assistance or suggestion, had identified Billings and Mooney from pictures in a book, pointing out in the course of such identification that the picture of Mooney showed him with a mustache which MacDonald said he was not wearing on the day of the explosion, and which was the fact. Thereupon, Goff testified herein, he held a finger over the mustache and MacDonald definitely stated that the picture of Mooney was a picture of the man he had seen at Steuart and Market Streets. Investigation verified MacDonald’s statement that he had related his observations almost immediately after the explosion to the several persons named by him. A police report filed by Goff, under date of August 10, 1916, and put in evidence herein, substantiates this portion of Goff’s testimony. Goff also testified that neither the district attorney nor any member of his staff, at whom the ‘ frameup ’ ’ charge is principally directed, was present when MacDonald identified Mooney and Billings from pictures in the “Safe Blowers” book. Contrary to MacDonald’s version of the incident, Goff likewise testified herein that when MacDonald was taken to the county jail to see the petitioner, he was permitted to walk along the tiers of cells, alone, and when he found the man he had seen at Steuart and Market Streets, he indicated with a gesture. It was petitioner’s cell. Goff denied that he had pointed out Mooney or Billings in their cells, as testified by MacDonald.

Captain Matheson testified, among other things, that prior to the trials the police department made a thorough check of MacDonald’s past history and his name was found to be without blemish. Likewise, that his story stood up under investigation. He was regarded as a very satisfactory witness and Matheson indicated he had no reason to question or doubt his testimony, until the execution of the 1921 affidavit.

Charles M. Fickert, who as district attorney headed the prosecution of petitioner, when on the stand in this proceeding, denied the charges made against him by MacDonald herein. He testified that MacDonald had identified both Mooney and Billings before he had met him; that his recollection was that he met MacDonald for the first time on August 1, 1916, before the grand jury session; that he never suggested or directed that MacDonald should say that Mooney and Billings were the men he had seen at Steuart and Market Streets; and that after the Billings trial he had sent MacDonald to a ranch because he had been set upon and otherwise harassed upon several occasions.

Edward A. Cunha, the deputy district attorney who prosecuted petitioner, testified, as regards the witness MacDonald, that before petitioner’s trial he went over MacDonald’s testimony with him; that he did not suggest any change in time or any other portion of such testimony; that he did not tell MacDonald that Mooney and Billings were the men they wanted; that MacDonald’s testimony to that effect is false; and that he did not attempt to have MacDonald testify at the later trials of the other defendants (which trials the witness did not direct) that he had seen an automobile at Steuart and Market Streets.

We could go on at greater length narrating other matters and circumstances, of which the record is replete, establishing the falsity of MacDonald’s attempted repudiation of his trial testimony. We are satisfied that sufficient has been said upon the point. We therefore find and conclude that the evidence before us is insufficient to establish that MacDonald gave false testimony upon the trial of the petitioner; that his attempted repudiation of his trial testimony is false; and that the charge that the prosecuting officials were guilty of subornation of perjury in connection with the testimony of the witness MacDonald is without substantial evidence to support it.

On the same day (July 24, 1916), that MacDonald first reported to the police and related to them what he had seen at Steuart and Market Streets two days earlier, certain written reports were made by police officers McCullough and Hughes of statements made to them by MacDonald. As introduced in evidence here they were pasted together, back to back. These reports, among other things, purport to contain descriptions of the men whom MacDonald had seen at the scene of the explosion. It is conceded by the respondent herein that they are not accurate descriptions of either Mooney or Billings. Based on this, and on the allegation that the existence of these reports was not ascertained by petitioner or his counsel until the 1930 Billings hearing, the petitioner charges herein that these reports were deliberately suppressed or negligently concealed from the defense at the time of the trial. Nowhere in the record is there any showing that the district attorney or his deputies had seen or were aware of the existence of these reports during any of the bomb trials. Petitioner upon his trial was ably represented by competent attorneys, well experienced in criminal practice. In fact, one of his counsel had shortly prior thereto severed his connection with the office of the district attorney wherein he had prosecuted many cases. Properly directed cross-examination, followed by a request or demand upon the proseenfirm in open court at the time of the trial, undoubtedly would have served to produce the reports now under consideration.

However, while knowledge of the contents of these reports may have assisted the defense in their cross-examination of MacDonald, we do not attach the significance or materiality to said reports that petitioner does. The description therein merely inaccurately stated the heights, weights and ages of the persons involved. No glaring discrepancy appears. It is a matter of common experience that the power to reproduce a mental picture of an unknown, or even a known, person, sufficiently accurate in every particular to enable ready identification of such person by others, is, in a great majority of eases, quite impossible. The indescribable countenance and physiological characteristics cannot be satisfactorily conveyed to another by words or in writing, except in rare cases. But when the person whose identity is in question is brought again before the identifying witness, the latter may with greater accuracy state whether such person agrees with the mental picture on the mind of the witness. Such is the situation that confronted the prosecution in 1916. In opposition to MacDonald’s meager and inaccurate oral descriptions of Mooney and Billings in his statements to officers McCullough and Hughes, there was the subsequent positive and unequivocal identification of those individuals by MacDonald both from their pictures and persons. Under the circumstances, the prosecution might well disregard as immaterial the former verbal statements of the witness. That is exactly what transpired. Captain Matheson, when on the stand as a witness for petitioner, testified that thirty years of police experience had established to his satisfaction that persons usually describe another inaccurately; that an oral description of a person usually “isn’t of any great value”; and that after a witness has actually identified a person, as did MacDonald, a prior written statement ceases to have any active effect and no further consideration is given to it. The record discloses that Captain Goff, a police officer of many years experience, shared this view. This would appear to be adequate explanation as to why the McCullough and Hughes reports were permitted to rest as merely two of several hundred reports or exhibits in the police files. Other than the asserted fact that petitioner was without knowledge of the existence of these reports until 1930, the record herein is destitute of any evideuce tending to establish their deliberate suppression. We, therefore, find and conclude that at the time of petitioner’s trial there was no suppression of material evidence in connection with the testimony of the witness MacDonald.

In the interim between the Billings and Mooney trials, the prosecution located Frank C. Oxman who appeared as a witness against petitioner. Oxman, who then resided in Durkee, Oregon, and who has since died, testified, in substance, that he was engaged in the cattle business which frequently brought him to San Francisco; that on the day of the explosion he arrived in San Francisco between 12:00 and 1:00 P. M. and shortly thereafter was standing at the southwest corner of Steuart and Market Streets (this would place Ox-man on the same side of Steuart Street whereon the explosion occurred and opposite to that side of the street upon which MacDonald stood); that while there he saw an automobile facing toward the ferry and containing Mooney, Rena Mooney, Billings, an unidentified man and Weinberg, the latter driving; that Mooney, while sitting in front and to the right of the driver, was holding a suitcase on the running board; that the automobile stopped, whereupon “the little auburn-haired boy (indicating Billings) jumped out of the hind seat, very excitedly and very rapidly and took the suitcase”; that the second and unidentified man also got out of the rear seat, came on the sidewalk near the witness and took the suitcase from Billings and the two walked down Steuart Street a short distance; that Mooney got out of the automobile and looked after the others; that Billings then took the suitcase from the unidentified man and placed it on the sidewalk against the building; that Billings then came back and joined Mooney; that he thinks ‘ ‘ They went in the door of the building there ... I won’t be sure whether all of them or not . . . and directly came out”; that Mooney and Billings were then talking, the former saying, “Give it to him and let him go; we must get away from here; the bulls will be after us ”; that Billings gave something to the unidentified man, who then left; that Billings went toward the automobile; that Mooney looked at his watch and at the ferry clock and proceeded toward the automobile; that the automobile then proceeded into Steuart Street; and that the witness left and arrived at the Terminal Hotel on the north side of Market Street and a little to the west of Steuart Street at about 1:45 P. M., lie estimated, because lie was expecting a phone call from a, Miller & Lux buyer at 2 P. M. On cross-examination of Oxman at the trial it was disclosed that he first told his story in Kansas City to someone who had phoned him and said he represented the district attorney of San Francisco; that he met the party later and told his story in response to questions; that he later got a letter from the district attorney inquiring when someone could be sent to interview him; that Lieutenant Bunner thereafter came to his headquarters at Durkee, Oregon; that he gave him a detailed story of the occurrences he had observed at Steuart and Market Streets. Again, on cross-examination he traced his movements on the day of the explosion, and testified that the automobile referred to on direct examination came along and stopped for about two minutes; that he entertained “no question about the identification” of the persons therein; that as the automobile left he made a note of the license number, whereupon he produced an envelope on which was written “Ford No. 5187, think stolen ‘grip’ S. F. July 22nd,”; that he wrote the number down be