Chapter XXVIII: Dismissal of the Graft Cases

At the time of Mr. Fickert's election to the District Attorney's office, the second trial of Patrick Calhoun for offering a bribe was well under way. As at the other graft trials, there had been delays [457] so that after five months the jury was only half complete. That the trial could not be finished before Mr. Fickert assumed the duties of his office became evident. The case was, for that reason, on December 9, continued until January 10, in order that Mr. Fickert might participate in the selection of the trial jurors. But on that date, Mr. Fickert, who had been in office only two days, very frankly admitted himself to be unfamiliar with the facts, and not prepared to go to trial. Further continuance was accordingly granted until January 31, and then until February 7.

In the meantime former Supervisor James L. Gallagher, the pivotal witness in the case, had disappeared. Gallagher was known to have been in San Francisco for some three weeks after Fickert's election. About December 1 he dropped out of sight. He was supposed to have gone to Europe.[458]

On February 7, Mr. Fickert moved the dismissal of the case pending against Mr. Calhoun on the ground that there was not sufficient legal and competent evidence to warrant him submitting the case to a jury.[459]

Judge Lawlor denied the motion. In denying it, Judge Lawlor stated that in the view of the court the action should be tried by a jury and a verdict should be rendered by a jury, if that were possible, in the full operation of the law.

Fickert stated in the discussion which followed that he wanted his motion to apply to all the other graft cases of the same class as Calhoun's, with the exception of the defendants Ruef and Schmitz. But here again did the Judge deny the District Attorney's request.

After Judge Lawlor's ruling, Calhoun's attorneys announced themselves ready to proceed with the trial of the case. Fickert stated that he would be ready in a week. Judge Lawlor thereupon questioned Fickert very closely about the absent witness, Gallagher. Fickert gave assurance that diligent hunt was being made for the witness.

The questioning of the District Attorney was continued ten days later when the case again came up. Judge Lawlor asked Fickert to tell definitely whether he proposed to put the issue before a jury in the absence of his material witness.

Fickert replied that Gallagher's absence greatly weakened the State's case, and that in his belief certain facts could not be proved without Gallagher being present. But as for that, Fickert insisted that even with Gallagher present he did not believe that the State could make out a case.[460] Nevertheless, he continued to insist that he was ready to proceed to try the action even in the absence of the witness Gallagher.

But Judge Lawlor announced that he did not propose to proceed with the trial of the action:

(1) If a material witness were without the jurisdiction of the court.

(2) If the court did not believe that the cause were to be prosecuted with the vigor and fidelity that the law contemplates.[461]

Fickert also stated his position. He insisted that he did not believe that any evidence had ever existed against the trolley-graft defendants Abbott and Mullally, and did not believe it to be his duty as District Attorney to prosecute men against whom there was no evidence. Fickert even attempted to commit Judge Lawlor to this proposition, by stating that the Judge in chambers had confessed as much. This Judge Lawlor denied. Mr. Fickert's assistant, Mr. Berry, had been present during the discussion in chambers between Mr. Fickert and Judge Lawlor, but Mr. Berry failed to sustain his chief's contention.[462]

"In these cases, the cases against Mr. Abbott and Mr. Mullally," said Fickert, "I shall never proceed in them because there is absolutely no evidence which at all gives even a suspicion."

In respect to the other cases, Mr. Fickert announced that he intended to take the same course that he had in those under discussion, and stated that if the Judge so desired he would advise him before hand as to which of the cases he intended to make a motion for dismissal.

"In view of the statement you made on February 7,"[463] replied Judge Lawlor, "the Court will not feel called upon to grant any application looking to a dismissal of any of those cases. The Court will finally deal with them in the manner prescribed by the law. And if that situation is not reached so that the Court can proceed with the trial, the Court will be under the solemn obligation of setting down in its minutes the reason why a trial has not been had in any particular instance, and why cases are dismissed or disposed of without the trial of the general issue. The Court cannot escape its responsibilities. I have pointed out that under the law it is for the Court to say finally what shall become of cases that are not pressed to conclusion, and when the Court does that it must give its reasons--the law says so. In this State, since the formation of the government therein, the power has not for any considerable length of time lodged in the District Attorney to dispose of actions; that matter is confided to the Court. Counsel will be doing injustice to his own position if he assumes that the Court has any other attitude than to finally dispose of these matters according to the law without doing injustice to any person, either to the District Attorney or any person who is unfortunate enough to be involved. But when the Court comes to write down its action it will be based upon what it believes to be the fact and upon nothing else."

Fickert replied that he was ready to proceed with the matter. To this Judge Lawlor reiterated that the Court was not going to permit the District Attorney to proceed in the absence of a witness, who, according to the District Attorney's own statement, was material.[464]

Nor did the earnest plea of attorneys for the defense for dismissal move Judge Lawlor. In the absence of the material witness, Gallagher, he continued the case, on the Court's own motion, until April 25.[465]

On that date, Calhoun's attorneys moved for dismissal of all the indictments pending against their client upon the ground that his trial had been postponed and continued for more than sixty days without his consent and over his objection and exception.

Fickert submitted the motion, fortifying it with a statement that he did not believe that the District Attorney's office would be justified in asking continuance until Gallagher's return.

Judge Lawlor postponed determination of the motion until July 14.[466] His ruling was announced on August 3.

Judge Lawlor went exhaustively into the situation presented.[467] He pointed out that a material and indispensable witness was absent from the State; he stated that the Court was called upon to intervene "because the District Attorney has at practically every turn followed the lead of these defendants"; he held that through the influence of unusual agencies, so far as the graft cases were concerned, the law had broken down, and that the crimes charged are of the most serious nature, "because such criminal activity tends to sap the very foundations of government"; he insisted that before the indictments should be finally disposed of every reasonable effort should be made to get at the truth of the situation.

"The disposition of grave charges other than on their merits," he concluded, "is not to be encouraged and should not be allowed, except in the face of a strict legal necessity." He continued the cases until August 29.

Stanley Moore, one of Calhoun's attorneys, when Judge Lawlor had concluded, demanded that he be permitted to reply. This demand was refused.

There followed one of the most extraordinary scenes ever recorded of a court of justice. The defendant's attorneys, the District Attorney, and even the prisoner at bar, openly and contemptuously defied the Judge on the bench.

Stanley Moore charged him with "doing politics from the bench that you stultify in your occupancy." A. A. Moore, another of Calhoun's lawyers, accused him of being "a partisan, a bitter partisan, and doing dirty politics."

"And," Stanley Moore hastened to add, "have been before these indictments were ever filed in this court, as the events of that midnight deal in which you participated on April 29 amply demonstrate."[468]

District Attorney Fickert, in the face of the Court's direction that he take his seat, denounced "the statements and aspersions you have tried to cast upon me" as "false in each and every particular."

A third of Mr. Calhoun's attorneys added his denunciation. Mr. John Barrett decried the proceedings as "infamous."

Judge Lawlor sentenced Calhoun's three attorneys to serve five days each in the county jail for contempt and ordered the Sheriff to take charge of them.

But the extraordinary scene was not concluded. The prisoner at the bar had not yet been heard. Calhoun took the floor to tell the judge on the bench that should the Judge send him (Calhoun) to jail for contempt "it will be heralded all over this country as an honor."[469] The Court attempted to interrupt the angry defendant. The interruption was ignored. The prisoner at the bar was exhibiting himself as more powerful in San Francisco than the Judge on the bench. When he had said his say, he took his seat.

The trolley-graft cases dragged along for more than a year after this astonishing scene in Judge Lawlor's courtroom.[470] The defendants applied to the Supreme Court in habeas corpus proceedings, but failed to secure interference. They then went to the State District Court of Appeal, where they secured a writ of mandate directing Judge Lawlor to dismiss the indictments in the cases of the trolley-graft defendants.[471] The District Attorney's office announced to Judge Lawlor that the District Attorney had no intention of prosecuting an appeal from the judgment and order of the District Court.

Judge Lawlor thereupon dismissed the cases as directed. He also included the cases against Frank G. Drum, Eugene de Sabla and John Martin, which were governed by much the same considerations as the trolley cases. Four years and a half had passed since the indictments had been brought. Little by little, the influence of those of the community who were for law and order and impartial law enforcement had been sapped and broken down. The prosecution had been worn out; the community had been worn out. The defense had shown greater staying qualities than either peace officers or community. It had been pretty thoroughly demonstrated that convictions could not be had.[472]

The dismissal of the trolley-graft and gas-graft cases was the final breaking down of San Francisco's efforts to have the cases tried upon their merits. To be sure, the indictments against the telephone-graft defendants and the prizefight-graft defendants, and against Schmitz and Ruef still stood. Glass, a telephone-graft defendant, had been convicted, but the Supreme Court had reversed the decision on technicalities.[473] The absent witness, Gallagher, was not a material witness in the Glass case. But when along in August, 1912, a year after the dismissal of the gas and trolley-graft cases, Glass's case was called, it was found that important witnesses had disappeared. The incident was taken by the papers, not as a reflection upon the community, but as a joke on Judge Lawlor.[474] The Glass cases were finally dismissed.

Former Mayor Schmitz in February, 1912, was brought to trial. Ruef was brought over from San Quentin prison to testify against him. But Ruef refused to testify unless the Ruef indictments were dismissed. This, Judge Dunne,[475] before whom many Ruef indictments were pending, refused to do. Ruef did not testify. Schmitz was acquitted. The other indictments against Schmitz were eventually dismissed.

The same course followed in the cases of the other graft defendants. The graft defense had beaten San Francisco; its record of shameful success was complete.

FOOTNOTES:

[457] The second trial of Patrick Calhoun (No. 1437) was begun July
19, 1909. Owing to the illness of one of Mr. Calhoun's
counsel, the trial was suspended on August 16th, and resumed
September 30th. The following day the defendant secured
further continuance until November 15th, upon the ground of
the pendency of a municipal political campaign. After the
election the trial was resumed. On December 9th, it was, by
agreement between the parties continued until January 10th,
when the new District Attorney should be in office.

[458] The motives which prompted Gallagher to flee the city are
among the undetermined elements of the graft cases. Perhaps
recollection of his attempted assassination had something to
do with it. It may be that the defense, which had done so many
extraordinary things during the course of the graft trials,
made it worth his while to go. Gallagher is known to have been
plentifully supplied with money while he was away. An attempt
was made to create the impression that agents of the
Prosecution had been instrumental in getting Gallagher out of
the State. But the attempt, while it confused the situation
somewhat, was not taken seriously. When in August, 1911, Judge
Lawlor dismissed the indictments against the alleged
bribe-givers in the trolley case, he took occasion to say: "I
am more convinced now than I was when these same motions were
urged more than a year ago, that James L. Gallagher is
remaining out of this jurisdiction for a specific purpose. The
future will make that point entirely clear. When his
importance as a witness in any of these so-called graft cases
has ceased there is no doubt that James L. Gallagher will be
again in our midst. If I were able to lay the responsibility
for that situation upon any individual or set of individuals I
repeat that appropriate proceedings would have been instituted
to have the law redressed in that behalf."

Judge Lawlor was right. After the dismissal of the graft cases
Mr. Gallagher returned to San Francisco.

To the intimation of District Attorney Fickert that Gallagher
left the State to embarrass the District Attorney's
administration, Judge Lawlor on one occasion said in an
opinion: "That the former administration may have distrusted
the official intentions of the District Attorney toward these
indictments might be assumed from all the surrounding
circumstances. But it does not seem probable that the former
administration would induce a material and indispensable
witness to leave the State and thereby make it easy for the
District Attorney to secure a result which otherwise might
entail serious embarrassment. So far as the showing is
concerned there is no tangible proof tending to support the
charge of the District Attorney, nor is there any proof which
would justify such an inference."

[459] Fickert's motion had been prepared in advance and was read to
the court. "Since the calling of this case on January 10th,"
he said, "I have made a thorough and careful examination of
the evidence left in the District Attorney's office by my
predecessor, Mr. Langdon, and he informed me on my accession
to the office, that he had delivered to me all the evidence of
every kind and character in his possession or under his
control in this case. I have also examined the transcript of
testimony given at the former trial of this defendant; besides
this, I have made independent search for further evidence.
These examinations convince me that there is not sufficient
legal and competent evidence to justify me, as a sworn officer
of the law, to present this case to a jury.

"My opinion is confirmed by the fact that 42 out of 48 jurors
sworn to try this defendant and the defendant, Tirey L. Ford,
upon the same state of facts, voted 'Not Guilty.' I,
therefore, 'In furtherance of justice,' move the dismissal of
this indictment, on the grounds that the evidence is wholly
insufficient to warrant another trial of this case."

[460] Judge Lawlor was also careful to make clear that if the court
proceeded with the formation of a jury, jeopardy would attach
to the case. He also pointed out that the statute of
limitations had run against the alleged crimes. The following
is from the transcript, the questions being directed to Mr.
Fickert:

The Court: You are aware that if you proceed to form a jury to
try this issue, and the witness does not appear, that jeopardy
has nevertheless attached and that the defendant will be
entitled to ask for his deliverance at the hands of that jury,
whether that witness is produced or not.

"Mr. Fickert: Yes, I am aware of that, if your Honor please.

"The Court: And you are aware further that the alleged
criminal act set up in the indictment is outlawed within the
meaning of Section 800 of the Penal Code; that is to say, that
more than three years have intervened since it is claimed that
that act was committed.

"Mr. Fickert: That is correct, if your Honor please.

"The Court: The witness, James L. Gallagher, gave testimony in
the trial of case 1436 against this defendant. You are aware
that the testimony relating to an indictment cannot be read to
a jury on a retrial of the action; in other words, that if
James L. Gallagher does not appear in this trial his testimony
cannot be presented to the jury."

Fickert suggested that counsel might stipulate that the
evidence be read. But counsel for Mr. Calhoun hastened to
assure Mr. Fickert that counsel would stipulate to nothing of
the kind.

[461] "At the present time," said Judge Lawlor in making this
announcement, "it is the intention of the Court to deal with
this matter, so far as the absence of that material witness is
concerned, and to suspend judgment as to the ultimate attitude
of the District Attorney in respect to this and other causes
before the Court. I do not intend to sit here and preside over
a trial if for any reason, whether it seems sufficient to the
District Attorney or not, the Court reaches the conclusion
that the case is not being prosecuted in good faith. The
Court, in pointing out the duty of the District Attorney on
February 7th, was not inviting a suggestion that we should
proceed to trial without regard to the outcome of that trial
or to its particular features or the manner in which it should
be tried. The Court will try no case, it will not consume its
own time, it will not consume the time of others, it will not
allow the expenditure of public money for the mere purpose of
going through the forms of a trial. The Court must feel in the
end that the people are represented. Now, what its final view
shall be as to the District Attorney will be announced when
the Court deems that announcement pertinent and proper. The
Court has its own views as to what may be done within the
exercise of its prerogative in the event that it does not feel
that the people are represented, and will act upon its own
judgment when that time arrives. At this time the witness
being absent from the jurisdiction of the Court, the Court
points out to the District Attorney his duty under Section
1052 of the Penal Code, to move for a proper continuance of
this action until the Court can be advised as to whether or
not that witness can be produced."

Later, when Fickert suggested that all criminal causes be
transferred to some other department where the judge might be
of a different opinion, Judge Lawlor said:

"I have had no occasion to find fault with your acts in
respect to any other causes that have been brought before this
Court. I am endeavoring to have your mind concentrated upon
one thing, and that is the matters which are before this
Court, and for the prosecution of which you, under your sworn
oath of office are required to give your full attention to.
Your own statement in support of your motion to dismiss this
case evinces in my judgment a disposition not to do your duty.
However, I still say that this matter I bring to your
attention, and ask you to give full reflection upon the
matter. I have no desire in any manner to hamper you. The
process of this Court is at your disposal at all times, in all
causes, and if any person or set of persons be found to be
interfering with the due administration of Justice you will
have a full hearing before this Court in order that you shall
not be so hampered. Your statement concerning these cases is
calculated not alone to affect the fortune of these
undetermined cases, but it is well calculated to affect the
disposition of the other causes and other charges wherein
convictions were had against other persons growing out of this
alleged transaction, and which cases are now on their way for
a determination to the courts of appeal in this State."

[462] "I think your Honor well knows," Fickert had said, "that
certain defendants in this particular class of cases, that
there have not been produced here in Court, and I do not think
ever existed, any evidence against them. I allude to Mr.
Abbott and Mr. Mullally. And I so informed you in your
chambers, and you in words confessed that proposition."

Judge Lawlor took this statement up. The following is from the
transcript:
"The Court: Now, before you pass to those other cases, in
regard to these two cases do you make the statement that I
made any statement to you, in the presence of Mr. Berry, that
I said there was not sufficient evidence?

"Mr. Fickert: I so informed you, and you, in effect, so
stated.

"The Court: Did you so understand it, Mr. Berry?

"Mr. Fickert: That there was no evidence against those men?

"Mr. Berry: I remember Mr. Fickert saying he did not consider
there was any evidence against those men, but I do not
remember the Court's reply: I do not remember that the Court
did reply.

"The Court: I did not. It is not the province of the Court to
pass upon the facts in a criminal case. The facts are placed
before a jury, and the jury pass on the facts.

"Mr. Fickert: I am certainly not mistaken in that matter.

"The Court: You are certainly mistaken in that matter; I was
careful not to make any such statement."

[463] See footnote 459, page 426.

[464] "In dealing with the attitude of the District Attorney," said
Judge Lawlor, "as is manifested by all that I have said upon
that subject, I have endeavored to deal justly with him, to
reach no conclusion myself definitely as to the attitude of
the District Attorney. I sincerely hope that in these cases,
as in all cases that may come before the Court, the District
Attorney will do his full duty. I desire it equally
understood, however, that if the District Attorney in any case
fails of his duty the Court is not going to be recreant and it
is not going to sit here as a minister of justice and permit a
travesty in any form, for any purpose, whatever the views of
the District Attorney may be. Now, I have endeavored to make
it clear that there are two considerations that will affect
the Court in the final disposition of this business: First,
that it will not proceed with the trial of any action where
material testimony is not forthcoming. That would be the
disposition of the Court in any case, but it is especially its
attitude in this case in view of the sweeping statement of the
District Attorney made on February 7th that there is no
sufficient evidence upon which to proceed to trial against any
of these four defendants."

[465] The statement was made repeatedly that Gallagher was not under
subpoena when he left the State. The statement was even
contained in the opinion of the Appellate Court, granting the
writ of mandate that preceded the dismissal of the graft
cases. Judge Lawlor at the proceedings when the cases were
finally dismissed, touched upon this feature as follows:

"The Court: The statement has been made in the opinion that I
am not able to account for its appearance in the showing. This
statement was made that no service had been made upon James L.
Gallagher or that he was not under the order of the Court.
That is a proposition of fact which has never been resolved by
this Court and I am unable to determine how it could be
determined elsewhere, how it could be declared elsewhere, in
the absence of such testimony as I might be able to give on
the subject. I expressly refrained, on an occasion when I made
an extended statement covering these cases, from making any
final word on that subject. I am not prepared now to say so,
because I don't know.

"Mr. Berry: I will state to the Court that I have made a very
careful inquiry in the District Attorney's office, and of the
records, and of the officials in that office in the previous
administration, and I have been unable to secure or to get any
definite information on that point."

[466] Judge Lawlor, in announcing this decision, said in part:
"Section 13 of Article I of the Constitution provides in
part: 'In criminal prosecutions in any court whatever the
party accused shall have the right to a speedy and public trial.
* * *.' Section 1382 of the Penal Code declares in part: 'The
court, unless good cause to the contrary is shown, must order
the prosecution to be dismissed in the following cases: * * *.
2. If a defendant, whose trial has not been postponed upon his
application, is not brought to trial within sixty days after
the finding of the indictment, or filing of the information.'

"This provision has repeatedly been declared to be a statutory
expression with reference to the section of the constitution
to which the Court has referred. It has been held to mark the
period within which a party accused of crime is to be brought
to trial, unless good cause to the contrary is shown. About
the general proposition of law involved in the determination
of the present motion there can be little ground for
contention. The perplexity usually arises in the determination
of what the reserve language of Subdivision 2 of Section 1382
of the Penal Code may be included to cover. An application of
this character must be determined according to the peculiar
circumstances surrounding the application." * * *

"The Court is of the view that so far as the determination of
the motion itself is concerned the onus is on the People to
show good cause, which would take the case out of the
operation of the constitutional provision and the statute
referred to. The Court, in that view of the matter, has
addressed the District Attorney as to what his attitude is
with respect to the motion, and the District Attorney has made
it plain that it is not his intention to take any step toward
meeting the application of the defendant to have the causes
dismissed. In the view which the Court takes of the general
attitude of the District Attorney toward the four defendants
at bar, the Court feels it is a case where it must act, and to
the extent that it may be needed, to protect the public
interests. The Court has judicial knowledge of the history of
the charges against these four defendants. It knows judicially
that a material, and, it is claimed, an indispensable witness
to the prosecution of these charges is without the
jurisdiction of the State. It is not prepared, on any evidence
before it, to charge the responsibility of the absence of that
witness either to the former administration or to the present
administration in the District Attorney's office. The fact,
however, that the witness is absent from the State and not
within reach of the process of the Court, is a fact
established before the Court at this time.

"It is not the intention of the Court to disregard the rights
of this or any other defendant, that may be urged before this
Court, but, it is likewise the disposition of the Court, to
see that the public interests are safeguarded, and that no
arrangement between the defendants and the sworn officer of
the law shall be suffered to direct and control the action of
this Court. And in that view of the matter the Court has
reached the conclusion that it is its duty to continue these
causes further, in order to see whether or not the missing
witness can be secured, and if he cannot be secured within
such time as this Court may deem to be proper and which would
take the case out of the exception contained in the provision
of the statute, and the constitutional provision, then to deal
with this motion.

"It is therefore ordered that the determination of the pending
motion in the causes against the four defendants named be
continued for further hearing until 10 a. m., Thursday, July
14, 1910."

[467] Judge Lawlor's decision will be found in full in the Appendix,
page i.

[468] See Chapter XV.

[469] Calhoun's denunciation of Judge Lawlor was as follows:

"Mr. Calhoun: May it please your Honor: I have been educated,
sir, to have respect for the courts. I have sat in your court
under circumstances that would have tried the patience of any
American. Throughout these trials I have sought, sir, to give
you under most trying circumstances that respect to which your
office entitles you. But, sir, I cannot sit quiet and listen
to the vile insinuations which you yourself have stated there
was no evidence before you to justify. There have been
periods, sir, when the greatest honor that could come to a man
was to go to jail; and as an American citizen I say to you
that if you should send me for contempt it will be heralded
all over this country as an honor. You have seen fit, sir, to
send three of the most distinguished counsel of this State to
jail. Why? Because they have sought to express in terms of
respect, and yet in terms of strength, their protest against
injustice----

"The Court: Mr. Calhoun----

"Mr. Calhoun: There is a time--pardon me, your Honor--when
every man has a right to be heard----

"The Court: Mr. Calhoun----

"Mr. Calhoun: Now, before I take my seat, I desire further to
say this, that any insinuation that implies either that I was
a party to any obstruction of justice, or that I was a party
to the absence of this witness, or that I have sought to
control the District Attorney's office of this city is untrue.
There is no evidence before this Court. You yourself know it."

[470] Judge Lawlor's term of office expired in January, 1913. At the
1912 November elections he was a candidate for re-election.
The force of the influence of the graft defense was thrown
against him. Nevertheless, he was re-elected to serve as
Superior Judge of the City and County of San Francisco until
January, 1919. In November, 1914, however, he was elected to
the Supreme Bench of the State, his term of office beginning
in January, 1915, and ending in January, 1927.

[471] Of the three Appellate Judges who granted this writ, one of
them, Kerrigan, was prominent in the flash-light picture taken
at Santa Cruz during the 1906 State Convention, in which Ruef
occupied the center position of honor. See Chapter IV.

[472] Assistant District Attorney Berry on the occasion of the
dismissal of the indictments said on this point: "If the men
who are involved in this transaction have transgressed the
laws they are sowing the wind possibly which may reap the
whirlwind by breaking down the institutions of the land. I
regret exceedingly, if these men are guilty of the offense
with which they have stood charged here, that they cannot be
convicted. I assure the Court and I state here that it would
be my purpose to follow these cases, if these defendants are
guilty and the evidence were had, to the uttermost in order to
bring about the ends of justice. It is no doubt in the minds
of the community that where men of prominence and where men of
wealth are concerned, and are brought before the bar of
justice and justice is not had, that those who are less
fortunate in influence and means are thereby made to feel and
believe that this is not a government for those who stand
before the law equal with those who stand with the tremendous
power of influence behind them."

[473] The seven Justices of the Supreme Court took no less than four
views of the points raised in the Glass case. The majority
opinion was written by Justice Henshaw, and concurred in by
Justices Melvin and Lorigan. Chief Justice Beatty concurred in
the judgment, but not in all the particulars of the opinion.
In signing the decision, the Chief Justice adds: "I concur in
the judgment of reversal and in most particulars in the
opinion of Justice Henshaw. I shall, if other pressing duties
permit, present my views in a separate opinion." (See 112
Pacific Reporter, page 297.) The dissenting opinion was
written by Justice Shaw and concurred in by Justice
Angellotti. A third opinion was written by Justice Sloss.
Justice Sloss, after defending the single point in the
majority opinion in which he concurs, concludes: "On each of
the other points discussed in the opinion of Justice Henshaw,
I agree with the dissenting members of the court (Shaw and
Angellotti) that no prejudicial error was committed."

The fourth opinion, which the Chief Justice intimated he might
file, was not filed.

[474] The following from the San Francisco Call of August 2, 1912,
indicates the completeness of the triumph of the defense
campaign:

"Mrs. Theodore Halsey, wife of Theodore V. Halsey, appeared
before Superior Judge Lawlor yesterday morning on a bench
warrant in the case of Louis Glass, indicted for bribery in
the telephone cases growing out of the so-called Graft
Prosecution. She was in court to explain the absence of her
husband from the State, whose appearance is wanted if Lawlor
orders Glass to trial.

"Attorney Bert Schlesinger appeared with Mrs. Halsey,
explaining the bench warrant was void inasmuch as Mrs. Halsey
was not a fugitive. He said he did not wish to impede the
trial in any way and would allow her to answer any questions
propounded by the Court.

"Lawlor asked Mrs. Halsey, through her attorney, where her
husband was. Mrs. Halsey was not compelled to take the stand.
She said Halsey left San Francisco six weeks ago because of
ill health, going to Nevada, and that she has not heard from
him in a week.

"Assistant District Attorney Berry said a motion was before
the Court to dismiss the indictments pending against Glass and
he wished to know the Court's intention. Lawlor said he
believed Halsey and Emil J. Zimmer, who is said to be in
Europe, were competent witnesses against Glass, and it was his
duty to try Glass again. He said the result of the former
Glass trials showed Halsey had knowledge of the source of the
bribe money and who paid it to the Supervisors.

"Lawlor continued the cases of Glass until August 12th, to
learn from the District Attorney if the Prosecution has
exhausted all its resources in the matter.

"Schlesinger and Mrs. Halsey were about to leave the courtroom
when Lawlor said, 'I trust, Mr. Schlesinger, you will inform
the Court of the whereabouts of Mr. Halsey, if you learn in
the meantime.'

"'I will assist the Court in any way possible,' replied
Schlesinger. 'But I regard all these Graft Prosecutions as
corpses and the mourners have long since ceased to mourn.'

"The Judge said nothing in the record showed such a condition.
Detective Sergeant Prool took the stand and said he had
learned nothing more of the whereabouts of either Halsey or
Zimmer."

[475] Judge Dunne, until the last, stood as staunchly for effective
prosecution of the graft cases as had Judge Lawlor.