[449]It is interesting to note that the politicians responsible for this condition, and who regarded Heney’s position at the 1909 primaries with no attempt to conceal their amusement, were in 1912, loudest in their insistence that they had been disfranchised because the names of Taft electors did not appear on the California election ballot at the 1912 election. It is also to be noted that their representations were based on misrepresentation. They could, under the 1911 election laws, had they had any intention of giving Taft genuine support in California, have placed the names on the ballot by petition, as was done in the case of the Roosevelt electors, who, lest their regular nomination be questioned, were also nominated by petition.[450]The California Legislature of 1911 corrected the features of the election laws which blocked free expression of the will of the electors. San Francisco, by amendment of its charter, has since placed all municipal elections on a strictly non-partisan basis, with provisions under which no candidate can be elected by a plurality vote. It is interesting to note that although opposed by Mayor McCarthy and the group of politicians about him, these amendments correcting the weaknesses of the election laws, were adopted overwhelmingly. McCarthy’s vote in 1911 was practically the same as the vote by which he was elected in 1909. Had the election been held under the same conditions in 1911, as in 1909, McCarthy would almost to a certainty have been re-elected.[451]Mr. Mauzy had the active opposition of the anti-prosecution element, which proposed that old sores be forgotten, and the city be kept free of graft in the future.“If you think,” said The Chronicle, on August 17, 1909, “San Francisco is suffering injury from the fruitless effort to obtain convictions in cases in which evidence is lacking, vote the Byron Mauzy ticket. If you believe that the sane thing to do is to cease wasting money over the attempt to accomplish the impossible, vote for candidates who can be depended upon to give the city an administration from which graft will be eliminated in future.”[452]The platform expressions on the Graft Prosecution issue are interesting. The Republican platform made no reference to it at all. There was some talk of providing that “the District Attorney should do his duty,” but not even this was provided. The Union Labor party plank on this question read as follows:“We believe in the principle of the equality of all men before the law; that every guilty person should be prosecuted with vigor, in accordance with the law of the land, and that the administration of the law should be free from any and all suspicion of private control. We condemn favoritism or leniency in behalf of any offender before the law, or any compromise with criminals. We demand that any and all offenders be dealt with alike, and to such end we pledge our nominees.”The Democratic plank alone pledged support to the Graft Prosecution. It read:“We pledge the Democratic party absolutely and unequivocally to the support of the Graft Prosecution which for three years has valiantly battled for the principle of the equality of all men before the law, which has secured convictions against disheartening odds and has paved the way for the clean administration of public affairs which we now enjoy.“The people must declare at this critical election for or against municipal corruption; for the enforcement of the law, or for its abandonment; for or against not only a greater but a better San Francisco.“Francis J. Heney, our candidate for District Attorney, embodies these issues, and we pledge him the vigorous and loyal support of the Democratic party.”[453]The “hurt business” argument was ably combated by businessmen who were free of the graft mire.“From all the available information at hand,” said Colonel Harris Weinstock, of the firm of Weinstock-Lubin & Co., in replying to this argument, “I find that on the whole the volume of business is greater in San Francisco than it ever was before. I am, therefore, unable to see how business has been hurt by the Graft Prosecution.“The burden of proof on this point properly rests with those making the charge. They should present facts and figures verifying their statement that business has been hurt by the graft prosecution before they can hope to have it accepted as fact.“So far as I have been able to find out, the Graft Prosecution has not hurt business, but even if it had seriously crippled business it would still be your duty and my duty and the duty of every lover and well-wisher of our free institutions to hold up the hands of those who are fighting your battle and my battle in an effort to bring public wrongdoers to justice, and thus prevent harm from coming to the republic. Let the work go on.”The American National Bank of San Francisco, in a financial letter issued August 25, 1909, gave figures which disproved the Hellman idea.“It is significant of San Francisco’s credit standing in the world at large,” the letter read, “that the bonds of this city command prices that compare favorably with the issues of other large municipalities, as measured by the low interest return which investors are willing to accept. To illustrate: For every $1,000 put into municipal bonds at present figures, the purchaser would receive per annum:“From San Francisco bonds$39.00“From Philadelphia bonds37.00“From Cincinnati bonds37.50“From Cleveland bonds37.50“From St. Louis bonds38.80“From Pittsburg bonds37.00“From Chicago bonds38.50“From Minneapolis bonds38.50“From Milwaukee bonds39.00“From New York bonds39.50“Considering these facts, and the readiness with which the San Francisco bonds are being taken, it does not appear that this city is suffering in reputation, as some people affect to believe, by reason of certain trials which have engaged the attention of the criminal courts for two years past.”“I have no patience,” said Heney, in discussing the Hellman argument, “with this talk that we hear from merchants and bankers that the Prosecution is hurting business. They heard the same talk in Boston when our Revolutionary sires threw tea overboard. It would hurt business, they said, to have a war with England. I can see the picture, when Thomas Jefferson was signing the Declaration of Independence, of a large man, who looked like the cartoonist’s representation of a corporation official, coming through the door behind him and shouting, ‘Hold on, Tom, you’ll hurt business.’ And when Washington was spending that terrible winter with his army at Valley Forge, the same class of men who are now crying at us in San Francisco were shouting for the war to stop. ‘Damn principle,’ they were crying. ‘It’s hurting business. This war must stop.’”[454]“It is,” said the Chronicle, commenting upon the adoption of such resolutions, “a matter of common knowledge that there is a widespread feeling among those whose good citizenship cannot be disputed that the city, having done its best for three years, without success, to find legal proof which would connect officials of the corporations which profited by the corruption of the Schmitz administration with the crime of bribery, it is necessary to discontinue the effort. Hitherto no one has been willing to formally approach the authorities in the matter lest he should appear to show sympathy with evildoers. The Richmond Club, however, has formally memorialized the Supervisors to withdraw further support by appropriations on the ground that it has become apparent that success is impossible, and that further effort would be not only a waste of money and energy but serve to keep before the world the memory of a most disgraceful epoch in our history.“Bribery of public officials is the most dangerous of crimes. It undermines the very foundation of government by the people. And yet it has been in this and all other large American cities the most common of crimes. In the public mind, and in common speech, any person or firm which has habitually done business with our city government has been held to have on himself the burden of proof that he was innocent of bribery. And then came the riot of debauchery under the Schmitz administration, with corruption in all forms permeating every department of the city government. We have had nothing like that before, and yet until the election of the present Board of Supervisors this city has almost never had a Board on which some members were not believed to be corrupt and constantly on the watch for opportunities to ‘hold up’ those seeking to do business with the city. It is not believed that any franchise now in existence has been obtained without bribery or operated without continuous bribery. It has been generally assumed that whoever undertook to do business with the city must buy his way in by some form of corruption.“Bribery is a crime for which conviction is almost impossible. Occasionally proof can be got through a decoy, as in the case of the Schmitz Supervisors. What was exposed in that way, however, was no legal proof against the higher officials of the beneficiary corporations. For that other proof must be had, and thus far, except in one case, no conviction has been had. And unless the courts reverse themselves that conviction will not stand. The question then arises as to the duty of the city. Shall we continue to expend energy in striving to accomplish what we all see to be impossible, or shall the city, having done its best, turn its energies into more hopeful channels? As to that there will be differences of opinion, nor is it possible for anyone to know to what extent those differences are founded in reason, and how much on personal hatreds and a desire for notoriety.“There is doubtless a feeling that the continuance of these prosecutions is now doing great harm, which could only be counterbalanced by conviction based on clear legal proof, for which it is impossible to hope. In the first place, it is enormously costly and has introduced a universal system of spying which is exciting animosity against both sides of these cases. Decent citizens are coming to resent secret efforts to induce them to compromise themselves on the one side or the other. Secondly, the awful exhibitions of perjury in order to escape jury duty are shocking the moral sense of the community as severely as it was shocked by the exposure of the bribery. And the examination of the jurors are resulting in expressions of opinion by prospective jurors which do not do the city any good. Finally, the conduct of these trials is turning into a farce processes which should be the most solemn exhibitions of the authority of the law. We must all recognize that it is common talk that society ought not to seek to imprison one possible criminal at the cost of the imprisonment for months at a time of innocent citizens dragged from their homes and compelled to listen to the interminable quarrels of counsel over matters having no legitimate bearing on the case and injected solely for the purpose of confusing jurymen. Everybody sees that it will be impossible in the case now on trial to get a jury fit to be intrusted with the fate of a dog. Every intelligent citizen has been ‘disqualified’ by reading the testimony before the Grand Jury.“It is a most difficult situation. No reputable citizen is willing to seem to impede the course of justice. But, now that an organized body has formally raised before the Supervisors a question which has long been a daily subject of discussion whenever two men have met, it will be necessary to frankly face the situation and decide where duty lies.”[455]The following from the Fresno Republican is very good example of this excellent but unavailing newspaper support:“Good people of San Francisco, give heed and take notice, the way it looks in the clearer perspective of an outside view.“Francis J. Heney is a candidate for District Attorney, and he is the issue. It is stop the Graft Prosecutions, or go on with them. Your votes will determine it.“You are ‘tired of the Graft Prosecutions.’ How long did it take you to get tired of the graft? Can you not be patient as long with militant honesty as you were with sneaking crime?“You may stop these Prosecutions, if you so vote. But remember the whole civilized world is looking on, and will judge you by that vote. It is the good name of San Francisco that you are voting up or down.“Banker Hellman says not. He has been to New York and he says ‘New York’ wants the Prosecutions stopped, and ‘New York’ will not lend any more money until they are stopped.“What is Banker Hellman’s ‘New York?’ It is certain banks and certain syndicates in New York. And it is the San Francisco officials of precisely these syndicates that you are now prosecuting. Of course, Patrick Calhoun, of New York, wants the prosecution of Patrick Calhoun of San Francisco stopped. It is Banker Hellman’s privilege to have a mere pendulum which swings from his San Francisco office to his New York office and thinks it is in New York. But it is not incumbent on you to share that mental deficiency. If Banker Hellman should announce in New York that he was going to discuss the San Francisco situation, his audience would consist of the New York partners of the San Francisco grafters. He thinks that is ‘New York.’ The real New York would neither know nor care. It never heard of Banker Hellman. But if Francis J. Heney should be announced to discuss the San Francisco situation in New York, there is not a place of assemblage in the city big enough to hold the people who would want to hear and see him. The whole nation knows Heney and it has made up its mind about him. It is waiting to see what you do, before it makes up its mind about you, too.“‘The prosecutions must stop, some time,’ to be sure. But who has earned from San Francisco the right to say when? When Francis J. Heney says it is time to quit, then it is time; not before. He has given his time, his strength, and almost his life for you. He has purified your politics and regulated your government. He has redeemed your city’s name in the esteem of the world. He is making for you a fight which no one ever had the courage, the persistence or the ability to make before. He is not tired yet and he has not surrendered yet. Suppose you leave it to him, when it is time to quit.“People of San Francisco, the world is looking on. It cannot determine your decision. Neither can you determine what it will think of that decision, when it is made.”[456]Heney on the day after the election issued the following statement:“The first battle for equality before the law has been fought and lost, but the war against graft will continue to be waged by all true soldiers who have been fighting with me in the great cause of common honesty, common decency, and civic righteousness.“The fight between the forces of evil and the forces of good is and must be a perpetual one. The first battle of Bull Run cast gloom over the entire earth, but that disaster only inspired the immortal Lincoln and his followers with stern resolution and fresh courage.“San Francisco has received a sad blow and the cause of equality before the law a great setback, but be of good cheer and take fresh courage, you many thousands of good men and women who have joined in this fight for the maintenance of the purity and protection of our homes and the uplifting of the moral standards of our city!“We have been defeated in this election, but the sober moral sense of the community will again reassert itself and San Francisco will vindicate herself before the world.“I retract nothing that I have said during the recent campaign. On the contrary, I reassert the truth of all that I have stated from the public platforms. I have no regrets except that for poor San Francisco and the many thousands of people who fought shoulder to shoulder with me in the good fight.“Let us all to-night firmly resolve that we will continue the battle for equality before the law with unabated vigor until success has crowned our efforts.”The following statement was issued by Rudolph Spreckels:“While the defeat at yesterday’s election of the principles for which I have fought is regretted by me, it will speedily bring about a truer estimate of my real motives.“One of the compensations of this defeat is that I have so quickly been given an opportunity to disprove the charges so frequently made that I have been actuated by sordid or vindictive motives. The individuals against whom it is alleged that I have entertained malicious and selfish designs are entirely removed from the possibility of harm at the hands of the so-called Prosecution.“Attempting to punish was an unpleasant and incidental portion of the public work which I set out to do. I am glad that the people have taken that task off my hands and left me free to do the more important part of my undertaking.“Feeling that the people will fully realize this, I desire to say that I shall continue the work of civic regeneration with undiminished hope and earnestness.”[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 seriousembarrassment. 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 thatanouncementpertinent 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 footnote459, page426.[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]SeeChapter 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.[476]See Cal. App. Rpts., vol. 14, page 576.[478]Said the Sacramento Bee in an editorial article discussing this order, the day after it was made public, January 24, 1911:It cannot be denied that this order, by a bare majority of the Supreme Court and—with the single exception of the Chief Justice, by the three of its members least esteemed and respected by the public—has excited disgust and exasperation throughout California. There is a strong popular feeling and belief that the Supreme Court should not thus have interposed to save from punishment the most notorious scoundrel and corruptionist in California, a man known to everybody as having enriched himself by systematic grafting and by the bribery of public servants in the interests of corporations, a man with many indictments resting against him, but convicted only on one.“What adds to this general disgust and indignation over the Supreme Court’s order is apprehension that the rehearing before that tribunal may result in the grant of a new trial for Ruef, a reversal which in all probability would be equivalent to a final discharge. Such changes have taken place in San Francisco in the last two years, especially in the office of the District Attorney, that a new trial would have small chance of ending in conviction.“No reasons are given by the Supreme Court for its order for a rehearing, but presumably they are of a purely technical sort, for the fact of Ruef’s guilt was abundantly proved on the trial.”[479]The Cartwright resolution was in full as follows:“Whereas, The Supreme Court of this State on or about the 23rd of January, 1911, rendered a decision in the case of the People of the State of California vs. Abraham Ruef, in which the defendant is granted a rehearing; and“Whereas, Various newspapers have published criticisms condemning said decision, and intimating that the Justices participating therein were controlled by corrupt and unworthy motives; and“Whereas, The integrity of our courts has been frequently assailed by public speakers and by many of our citizens, all of which tends to destroy the confidence of The People in the purity and integrity of our courts of justice; be it“Resolved, by the Senate, That the Assembly be requested to appoint a committee of the Assembly, such committee to be authorized, empowered and instructed to investigate the whole subject matter and particularly to investigate said decision, the grounds upon which the decision is based and the conduct of the Justices of the Supreme Court in relation to said decision, and that the committee report to the Assembly the results of such investigation, with such recommendations as to the committee may seem meet and proper in the premises; be it further“Resolved, That said committee shall have power to summon witnesses, and to send for persons and papers and to issue subpoenaes and compel attendance of witnesses when necessary.”
[449]It is interesting to note that the politicians responsible for this condition, and who regarded Heney’s position at the 1909 primaries with no attempt to conceal their amusement, were in 1912, loudest in their insistence that they had been disfranchised because the names of Taft electors did not appear on the California election ballot at the 1912 election. It is also to be noted that their representations were based on misrepresentation. They could, under the 1911 election laws, had they had any intention of giving Taft genuine support in California, have placed the names on the ballot by petition, as was done in the case of the Roosevelt electors, who, lest their regular nomination be questioned, were also nominated by petition.
It is interesting to note that the politicians responsible for this condition, and who regarded Heney’s position at the 1909 primaries with no attempt to conceal their amusement, were in 1912, loudest in their insistence that they had been disfranchised because the names of Taft electors did not appear on the California election ballot at the 1912 election. It is also to be noted that their representations were based on misrepresentation. They could, under the 1911 election laws, had they had any intention of giving Taft genuine support in California, have placed the names on the ballot by petition, as was done in the case of the Roosevelt electors, who, lest their regular nomination be questioned, were also nominated by petition.
[450]The California Legislature of 1911 corrected the features of the election laws which blocked free expression of the will of the electors. San Francisco, by amendment of its charter, has since placed all municipal elections on a strictly non-partisan basis, with provisions under which no candidate can be elected by a plurality vote. It is interesting to note that although opposed by Mayor McCarthy and the group of politicians about him, these amendments correcting the weaknesses of the election laws, were adopted overwhelmingly. McCarthy’s vote in 1911 was practically the same as the vote by which he was elected in 1909. Had the election been held under the same conditions in 1911, as in 1909, McCarthy would almost to a certainty have been re-elected.
The California Legislature of 1911 corrected the features of the election laws which blocked free expression of the will of the electors. San Francisco, by amendment of its charter, has since placed all municipal elections on a strictly non-partisan basis, with provisions under which no candidate can be elected by a plurality vote. It is interesting to note that although opposed by Mayor McCarthy and the group of politicians about him, these amendments correcting the weaknesses of the election laws, were adopted overwhelmingly. McCarthy’s vote in 1911 was practically the same as the vote by which he was elected in 1909. Had the election been held under the same conditions in 1911, as in 1909, McCarthy would almost to a certainty have been re-elected.
[451]Mr. Mauzy had the active opposition of the anti-prosecution element, which proposed that old sores be forgotten, and the city be kept free of graft in the future.“If you think,” said The Chronicle, on August 17, 1909, “San Francisco is suffering injury from the fruitless effort to obtain convictions in cases in which evidence is lacking, vote the Byron Mauzy ticket. If you believe that the sane thing to do is to cease wasting money over the attempt to accomplish the impossible, vote for candidates who can be depended upon to give the city an administration from which graft will be eliminated in future.”
Mr. Mauzy had the active opposition of the anti-prosecution element, which proposed that old sores be forgotten, and the city be kept free of graft in the future.
“If you think,” said The Chronicle, on August 17, 1909, “San Francisco is suffering injury from the fruitless effort to obtain convictions in cases in which evidence is lacking, vote the Byron Mauzy ticket. If you believe that the sane thing to do is to cease wasting money over the attempt to accomplish the impossible, vote for candidates who can be depended upon to give the city an administration from which graft will be eliminated in future.”
[452]The platform expressions on the Graft Prosecution issue are interesting. The Republican platform made no reference to it at all. There was some talk of providing that “the District Attorney should do his duty,” but not even this was provided. The Union Labor party plank on this question read as follows:“We believe in the principle of the equality of all men before the law; that every guilty person should be prosecuted with vigor, in accordance with the law of the land, and that the administration of the law should be free from any and all suspicion of private control. We condemn favoritism or leniency in behalf of any offender before the law, or any compromise with criminals. We demand that any and all offenders be dealt with alike, and to such end we pledge our nominees.”The Democratic plank alone pledged support to the Graft Prosecution. It read:“We pledge the Democratic party absolutely and unequivocally to the support of the Graft Prosecution which for three years has valiantly battled for the principle of the equality of all men before the law, which has secured convictions against disheartening odds and has paved the way for the clean administration of public affairs which we now enjoy.“The people must declare at this critical election for or against municipal corruption; for the enforcement of the law, or for its abandonment; for or against not only a greater but a better San Francisco.“Francis J. Heney, our candidate for District Attorney, embodies these issues, and we pledge him the vigorous and loyal support of the Democratic party.”
The platform expressions on the Graft Prosecution issue are interesting. The Republican platform made no reference to it at all. There was some talk of providing that “the District Attorney should do his duty,” but not even this was provided. The Union Labor party plank on this question read as follows:
“We believe in the principle of the equality of all men before the law; that every guilty person should be prosecuted with vigor, in accordance with the law of the land, and that the administration of the law should be free from any and all suspicion of private control. We condemn favoritism or leniency in behalf of any offender before the law, or any compromise with criminals. We demand that any and all offenders be dealt with alike, and to such end we pledge our nominees.”
The Democratic plank alone pledged support to the Graft Prosecution. It read:
“We pledge the Democratic party absolutely and unequivocally to the support of the Graft Prosecution which for three years has valiantly battled for the principle of the equality of all men before the law, which has secured convictions against disheartening odds and has paved the way for the clean administration of public affairs which we now enjoy.
“The people must declare at this critical election for or against municipal corruption; for the enforcement of the law, or for its abandonment; for or against not only a greater but a better San Francisco.
“Francis J. Heney, our candidate for District Attorney, embodies these issues, and we pledge him the vigorous and loyal support of the Democratic party.”
[453]The “hurt business” argument was ably combated by businessmen who were free of the graft mire.“From all the available information at hand,” said Colonel Harris Weinstock, of the firm of Weinstock-Lubin & Co., in replying to this argument, “I find that on the whole the volume of business is greater in San Francisco than it ever was before. I am, therefore, unable to see how business has been hurt by the Graft Prosecution.“The burden of proof on this point properly rests with those making the charge. They should present facts and figures verifying their statement that business has been hurt by the graft prosecution before they can hope to have it accepted as fact.“So far as I have been able to find out, the Graft Prosecution has not hurt business, but even if it had seriously crippled business it would still be your duty and my duty and the duty of every lover and well-wisher of our free institutions to hold up the hands of those who are fighting your battle and my battle in an effort to bring public wrongdoers to justice, and thus prevent harm from coming to the republic. Let the work go on.”The American National Bank of San Francisco, in a financial letter issued August 25, 1909, gave figures which disproved the Hellman idea.“It is significant of San Francisco’s credit standing in the world at large,” the letter read, “that the bonds of this city command prices that compare favorably with the issues of other large municipalities, as measured by the low interest return which investors are willing to accept. To illustrate: For every $1,000 put into municipal bonds at present figures, the purchaser would receive per annum:“From San Francisco bonds$39.00“From Philadelphia bonds37.00“From Cincinnati bonds37.50“From Cleveland bonds37.50“From St. Louis bonds38.80“From Pittsburg bonds37.00“From Chicago bonds38.50“From Minneapolis bonds38.50“From Milwaukee bonds39.00“From New York bonds39.50“Considering these facts, and the readiness with which the San Francisco bonds are being taken, it does not appear that this city is suffering in reputation, as some people affect to believe, by reason of certain trials which have engaged the attention of the criminal courts for two years past.”“I have no patience,” said Heney, in discussing the Hellman argument, “with this talk that we hear from merchants and bankers that the Prosecution is hurting business. They heard the same talk in Boston when our Revolutionary sires threw tea overboard. It would hurt business, they said, to have a war with England. I can see the picture, when Thomas Jefferson was signing the Declaration of Independence, of a large man, who looked like the cartoonist’s representation of a corporation official, coming through the door behind him and shouting, ‘Hold on, Tom, you’ll hurt business.’ And when Washington was spending that terrible winter with his army at Valley Forge, the same class of men who are now crying at us in San Francisco were shouting for the war to stop. ‘Damn principle,’ they were crying. ‘It’s hurting business. This war must stop.’”
The “hurt business” argument was ably combated by businessmen who were free of the graft mire.
“From all the available information at hand,” said Colonel Harris Weinstock, of the firm of Weinstock-Lubin & Co., in replying to this argument, “I find that on the whole the volume of business is greater in San Francisco than it ever was before. I am, therefore, unable to see how business has been hurt by the Graft Prosecution.
“The burden of proof on this point properly rests with those making the charge. They should present facts and figures verifying their statement that business has been hurt by the graft prosecution before they can hope to have it accepted as fact.
“So far as I have been able to find out, the Graft Prosecution has not hurt business, but even if it had seriously crippled business it would still be your duty and my duty and the duty of every lover and well-wisher of our free institutions to hold up the hands of those who are fighting your battle and my battle in an effort to bring public wrongdoers to justice, and thus prevent harm from coming to the republic. Let the work go on.”
The American National Bank of San Francisco, in a financial letter issued August 25, 1909, gave figures which disproved the Hellman idea.
“It is significant of San Francisco’s credit standing in the world at large,” the letter read, “that the bonds of this city command prices that compare favorably with the issues of other large municipalities, as measured by the low interest return which investors are willing to accept. To illustrate: For every $1,000 put into municipal bonds at present figures, the purchaser would receive per annum:
“Considering these facts, and the readiness with which the San Francisco bonds are being taken, it does not appear that this city is suffering in reputation, as some people affect to believe, by reason of certain trials which have engaged the attention of the criminal courts for two years past.”
“I have no patience,” said Heney, in discussing the Hellman argument, “with this talk that we hear from merchants and bankers that the Prosecution is hurting business. They heard the same talk in Boston when our Revolutionary sires threw tea overboard. It would hurt business, they said, to have a war with England. I can see the picture, when Thomas Jefferson was signing the Declaration of Independence, of a large man, who looked like the cartoonist’s representation of a corporation official, coming through the door behind him and shouting, ‘Hold on, Tom, you’ll hurt business.’ And when Washington was spending that terrible winter with his army at Valley Forge, the same class of men who are now crying at us in San Francisco were shouting for the war to stop. ‘Damn principle,’ they were crying. ‘It’s hurting business. This war must stop.’”
[454]“It is,” said the Chronicle, commenting upon the adoption of such resolutions, “a matter of common knowledge that there is a widespread feeling among those whose good citizenship cannot be disputed that the city, having done its best for three years, without success, to find legal proof which would connect officials of the corporations which profited by the corruption of the Schmitz administration with the crime of bribery, it is necessary to discontinue the effort. Hitherto no one has been willing to formally approach the authorities in the matter lest he should appear to show sympathy with evildoers. The Richmond Club, however, has formally memorialized the Supervisors to withdraw further support by appropriations on the ground that it has become apparent that success is impossible, and that further effort would be not only a waste of money and energy but serve to keep before the world the memory of a most disgraceful epoch in our history.“Bribery of public officials is the most dangerous of crimes. It undermines the very foundation of government by the people. And yet it has been in this and all other large American cities the most common of crimes. In the public mind, and in common speech, any person or firm which has habitually done business with our city government has been held to have on himself the burden of proof that he was innocent of bribery. And then came the riot of debauchery under the Schmitz administration, with corruption in all forms permeating every department of the city government. We have had nothing like that before, and yet until the election of the present Board of Supervisors this city has almost never had a Board on which some members were not believed to be corrupt and constantly on the watch for opportunities to ‘hold up’ those seeking to do business with the city. It is not believed that any franchise now in existence has been obtained without bribery or operated without continuous bribery. It has been generally assumed that whoever undertook to do business with the city must buy his way in by some form of corruption.“Bribery is a crime for which conviction is almost impossible. Occasionally proof can be got through a decoy, as in the case of the Schmitz Supervisors. What was exposed in that way, however, was no legal proof against the higher officials of the beneficiary corporations. For that other proof must be had, and thus far, except in one case, no conviction has been had. And unless the courts reverse themselves that conviction will not stand. The question then arises as to the duty of the city. Shall we continue to expend energy in striving to accomplish what we all see to be impossible, or shall the city, having done its best, turn its energies into more hopeful channels? As to that there will be differences of opinion, nor is it possible for anyone to know to what extent those differences are founded in reason, and how much on personal hatreds and a desire for notoriety.“There is doubtless a feeling that the continuance of these prosecutions is now doing great harm, which could only be counterbalanced by conviction based on clear legal proof, for which it is impossible to hope. In the first place, it is enormously costly and has introduced a universal system of spying which is exciting animosity against both sides of these cases. Decent citizens are coming to resent secret efforts to induce them to compromise themselves on the one side or the other. Secondly, the awful exhibitions of perjury in order to escape jury duty are shocking the moral sense of the community as severely as it was shocked by the exposure of the bribery. And the examination of the jurors are resulting in expressions of opinion by prospective jurors which do not do the city any good. Finally, the conduct of these trials is turning into a farce processes which should be the most solemn exhibitions of the authority of the law. We must all recognize that it is common talk that society ought not to seek to imprison one possible criminal at the cost of the imprisonment for months at a time of innocent citizens dragged from their homes and compelled to listen to the interminable quarrels of counsel over matters having no legitimate bearing on the case and injected solely for the purpose of confusing jurymen. Everybody sees that it will be impossible in the case now on trial to get a jury fit to be intrusted with the fate of a dog. Every intelligent citizen has been ‘disqualified’ by reading the testimony before the Grand Jury.“It is a most difficult situation. No reputable citizen is willing to seem to impede the course of justice. But, now that an organized body has formally raised before the Supervisors a question which has long been a daily subject of discussion whenever two men have met, it will be necessary to frankly face the situation and decide where duty lies.”
“It is,” said the Chronicle, commenting upon the adoption of such resolutions, “a matter of common knowledge that there is a widespread feeling among those whose good citizenship cannot be disputed that the city, having done its best for three years, without success, to find legal proof which would connect officials of the corporations which profited by the corruption of the Schmitz administration with the crime of bribery, it is necessary to discontinue the effort. Hitherto no one has been willing to formally approach the authorities in the matter lest he should appear to show sympathy with evildoers. The Richmond Club, however, has formally memorialized the Supervisors to withdraw further support by appropriations on the ground that it has become apparent that success is impossible, and that further effort would be not only a waste of money and energy but serve to keep before the world the memory of a most disgraceful epoch in our history.
“Bribery of public officials is the most dangerous of crimes. It undermines the very foundation of government by the people. And yet it has been in this and all other large American cities the most common of crimes. In the public mind, and in common speech, any person or firm which has habitually done business with our city government has been held to have on himself the burden of proof that he was innocent of bribery. And then came the riot of debauchery under the Schmitz administration, with corruption in all forms permeating every department of the city government. We have had nothing like that before, and yet until the election of the present Board of Supervisors this city has almost never had a Board on which some members were not believed to be corrupt and constantly on the watch for opportunities to ‘hold up’ those seeking to do business with the city. It is not believed that any franchise now in existence has been obtained without bribery or operated without continuous bribery. It has been generally assumed that whoever undertook to do business with the city must buy his way in by some form of corruption.
“Bribery is a crime for which conviction is almost impossible. Occasionally proof can be got through a decoy, as in the case of the Schmitz Supervisors. What was exposed in that way, however, was no legal proof against the higher officials of the beneficiary corporations. For that other proof must be had, and thus far, except in one case, no conviction has been had. And unless the courts reverse themselves that conviction will not stand. The question then arises as to the duty of the city. Shall we continue to expend energy in striving to accomplish what we all see to be impossible, or shall the city, having done its best, turn its energies into more hopeful channels? As to that there will be differences of opinion, nor is it possible for anyone to know to what extent those differences are founded in reason, and how much on personal hatreds and a desire for notoriety.
“There is doubtless a feeling that the continuance of these prosecutions is now doing great harm, which could only be counterbalanced by conviction based on clear legal proof, for which it is impossible to hope. In the first place, it is enormously costly and has introduced a universal system of spying which is exciting animosity against both sides of these cases. Decent citizens are coming to resent secret efforts to induce them to compromise themselves on the one side or the other. Secondly, the awful exhibitions of perjury in order to escape jury duty are shocking the moral sense of the community as severely as it was shocked by the exposure of the bribery. And the examination of the jurors are resulting in expressions of opinion by prospective jurors which do not do the city any good. Finally, the conduct of these trials is turning into a farce processes which should be the most solemn exhibitions of the authority of the law. We must all recognize that it is common talk that society ought not to seek to imprison one possible criminal at the cost of the imprisonment for months at a time of innocent citizens dragged from their homes and compelled to listen to the interminable quarrels of counsel over matters having no legitimate bearing on the case and injected solely for the purpose of confusing jurymen. Everybody sees that it will be impossible in the case now on trial to get a jury fit to be intrusted with the fate of a dog. Every intelligent citizen has been ‘disqualified’ by reading the testimony before the Grand Jury.
“It is a most difficult situation. No reputable citizen is willing to seem to impede the course of justice. But, now that an organized body has formally raised before the Supervisors a question which has long been a daily subject of discussion whenever two men have met, it will be necessary to frankly face the situation and decide where duty lies.”
[455]The following from the Fresno Republican is very good example of this excellent but unavailing newspaper support:“Good people of San Francisco, give heed and take notice, the way it looks in the clearer perspective of an outside view.“Francis J. Heney is a candidate for District Attorney, and he is the issue. It is stop the Graft Prosecutions, or go on with them. Your votes will determine it.“You are ‘tired of the Graft Prosecutions.’ How long did it take you to get tired of the graft? Can you not be patient as long with militant honesty as you were with sneaking crime?“You may stop these Prosecutions, if you so vote. But remember the whole civilized world is looking on, and will judge you by that vote. It is the good name of San Francisco that you are voting up or down.“Banker Hellman says not. He has been to New York and he says ‘New York’ wants the Prosecutions stopped, and ‘New York’ will not lend any more money until they are stopped.“What is Banker Hellman’s ‘New York?’ It is certain banks and certain syndicates in New York. And it is the San Francisco officials of precisely these syndicates that you are now prosecuting. Of course, Patrick Calhoun, of New York, wants the prosecution of Patrick Calhoun of San Francisco stopped. It is Banker Hellman’s privilege to have a mere pendulum which swings from his San Francisco office to his New York office and thinks it is in New York. But it is not incumbent on you to share that mental deficiency. If Banker Hellman should announce in New York that he was going to discuss the San Francisco situation, his audience would consist of the New York partners of the San Francisco grafters. He thinks that is ‘New York.’ The real New York would neither know nor care. It never heard of Banker Hellman. But if Francis J. Heney should be announced to discuss the San Francisco situation in New York, there is not a place of assemblage in the city big enough to hold the people who would want to hear and see him. The whole nation knows Heney and it has made up its mind about him. It is waiting to see what you do, before it makes up its mind about you, too.“‘The prosecutions must stop, some time,’ to be sure. But who has earned from San Francisco the right to say when? When Francis J. Heney says it is time to quit, then it is time; not before. He has given his time, his strength, and almost his life for you. He has purified your politics and regulated your government. He has redeemed your city’s name in the esteem of the world. He is making for you a fight which no one ever had the courage, the persistence or the ability to make before. He is not tired yet and he has not surrendered yet. Suppose you leave it to him, when it is time to quit.“People of San Francisco, the world is looking on. It cannot determine your decision. Neither can you determine what it will think of that decision, when it is made.”
The following from the Fresno Republican is very good example of this excellent but unavailing newspaper support:
“Good people of San Francisco, give heed and take notice, the way it looks in the clearer perspective of an outside view.
“Francis J. Heney is a candidate for District Attorney, and he is the issue. It is stop the Graft Prosecutions, or go on with them. Your votes will determine it.
“You are ‘tired of the Graft Prosecutions.’ How long did it take you to get tired of the graft? Can you not be patient as long with militant honesty as you were with sneaking crime?
“You may stop these Prosecutions, if you so vote. But remember the whole civilized world is looking on, and will judge you by that vote. It is the good name of San Francisco that you are voting up or down.
“Banker Hellman says not. He has been to New York and he says ‘New York’ wants the Prosecutions stopped, and ‘New York’ will not lend any more money until they are stopped.
“What is Banker Hellman’s ‘New York?’ It is certain banks and certain syndicates in New York. And it is the San Francisco officials of precisely these syndicates that you are now prosecuting. Of course, Patrick Calhoun, of New York, wants the prosecution of Patrick Calhoun of San Francisco stopped. It is Banker Hellman’s privilege to have a mere pendulum which swings from his San Francisco office to his New York office and thinks it is in New York. But it is not incumbent on you to share that mental deficiency. If Banker Hellman should announce in New York that he was going to discuss the San Francisco situation, his audience would consist of the New York partners of the San Francisco grafters. He thinks that is ‘New York.’ The real New York would neither know nor care. It never heard of Banker Hellman. But if Francis J. Heney should be announced to discuss the San Francisco situation in New York, there is not a place of assemblage in the city big enough to hold the people who would want to hear and see him. The whole nation knows Heney and it has made up its mind about him. It is waiting to see what you do, before it makes up its mind about you, too.
“‘The prosecutions must stop, some time,’ to be sure. But who has earned from San Francisco the right to say when? When Francis J. Heney says it is time to quit, then it is time; not before. He has given his time, his strength, and almost his life for you. He has purified your politics and regulated your government. He has redeemed your city’s name in the esteem of the world. He is making for you a fight which no one ever had the courage, the persistence or the ability to make before. He is not tired yet and he has not surrendered yet. Suppose you leave it to him, when it is time to quit.
“People of San Francisco, the world is looking on. It cannot determine your decision. Neither can you determine what it will think of that decision, when it is made.”
[456]Heney on the day after the election issued the following statement:“The first battle for equality before the law has been fought and lost, but the war against graft will continue to be waged by all true soldiers who have been fighting with me in the great cause of common honesty, common decency, and civic righteousness.“The fight between the forces of evil and the forces of good is and must be a perpetual one. The first battle of Bull Run cast gloom over the entire earth, but that disaster only inspired the immortal Lincoln and his followers with stern resolution and fresh courage.“San Francisco has received a sad blow and the cause of equality before the law a great setback, but be of good cheer and take fresh courage, you many thousands of good men and women who have joined in this fight for the maintenance of the purity and protection of our homes and the uplifting of the moral standards of our city!“We have been defeated in this election, but the sober moral sense of the community will again reassert itself and San Francisco will vindicate herself before the world.“I retract nothing that I have said during the recent campaign. On the contrary, I reassert the truth of all that I have stated from the public platforms. I have no regrets except that for poor San Francisco and the many thousands of people who fought shoulder to shoulder with me in the good fight.“Let us all to-night firmly resolve that we will continue the battle for equality before the law with unabated vigor until success has crowned our efforts.”The following statement was issued by Rudolph Spreckels:“While the defeat at yesterday’s election of the principles for which I have fought is regretted by me, it will speedily bring about a truer estimate of my real motives.“One of the compensations of this defeat is that I have so quickly been given an opportunity to disprove the charges so frequently made that I have been actuated by sordid or vindictive motives. The individuals against whom it is alleged that I have entertained malicious and selfish designs are entirely removed from the possibility of harm at the hands of the so-called Prosecution.“Attempting to punish was an unpleasant and incidental portion of the public work which I set out to do. I am glad that the people have taken that task off my hands and left me free to do the more important part of my undertaking.“Feeling that the people will fully realize this, I desire to say that I shall continue the work of civic regeneration with undiminished hope and earnestness.”
Heney on the day after the election issued the following statement:
“The first battle for equality before the law has been fought and lost, but the war against graft will continue to be waged by all true soldiers who have been fighting with me in the great cause of common honesty, common decency, and civic righteousness.
“The fight between the forces of evil and the forces of good is and must be a perpetual one. The first battle of Bull Run cast gloom over the entire earth, but that disaster only inspired the immortal Lincoln and his followers with stern resolution and fresh courage.
“San Francisco has received a sad blow and the cause of equality before the law a great setback, but be of good cheer and take fresh courage, you many thousands of good men and women who have joined in this fight for the maintenance of the purity and protection of our homes and the uplifting of the moral standards of our city!
“We have been defeated in this election, but the sober moral sense of the community will again reassert itself and San Francisco will vindicate herself before the world.
“I retract nothing that I have said during the recent campaign. On the contrary, I reassert the truth of all that I have stated from the public platforms. I have no regrets except that for poor San Francisco and the many thousands of people who fought shoulder to shoulder with me in the good fight.
“Let us all to-night firmly resolve that we will continue the battle for equality before the law with unabated vigor until success has crowned our efforts.”
The following statement was issued by Rudolph Spreckels:
“While the defeat at yesterday’s election of the principles for which I have fought is regretted by me, it will speedily bring about a truer estimate of my real motives.
“One of the compensations of this defeat is that I have so quickly been given an opportunity to disprove the charges so frequently made that I have been actuated by sordid or vindictive motives. The individuals against whom it is alleged that I have entertained malicious and selfish designs are entirely removed from the possibility of harm at the hands of the so-called Prosecution.
“Attempting to punish was an unpleasant and incidental portion of the public work which I set out to do. I am glad that the people have taken that task off my hands and left me free to do the more important part of my undertaking.
“Feeling that the people will fully realize this, I desire to say that I shall continue the work of civic regeneration with undiminished hope and earnestness.”
[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.
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 seriousembarrassment. 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.”
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 seriousembarrassment. 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.”
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.
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 thatanouncementpertinent 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.”
“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 thatanouncementpertinent 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.”
“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 footnote459, page426.
See footnote459, page426.
[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.”
“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.”
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.”
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.
Judge Lawlor’s decision will be found in full in the Appendix, page i.
[468]SeeChapter XV.
SeeChapter 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.”
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.
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.
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.”
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.
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.”
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.
Judge Dunne, until the last, stood as staunchly for effective prosecution of the graft cases as had Judge Lawlor.
[476]See Cal. App. Rpts., vol. 14, page 576.
See Cal. App. Rpts., vol. 14, page 576.
[478]Said the Sacramento Bee in an editorial article discussing this order, the day after it was made public, January 24, 1911:It cannot be denied that this order, by a bare majority of the Supreme Court and—with the single exception of the Chief Justice, by the three of its members least esteemed and respected by the public—has excited disgust and exasperation throughout California. There is a strong popular feeling and belief that the Supreme Court should not thus have interposed to save from punishment the most notorious scoundrel and corruptionist in California, a man known to everybody as having enriched himself by systematic grafting and by the bribery of public servants in the interests of corporations, a man with many indictments resting against him, but convicted only on one.“What adds to this general disgust and indignation over the Supreme Court’s order is apprehension that the rehearing before that tribunal may result in the grant of a new trial for Ruef, a reversal which in all probability would be equivalent to a final discharge. Such changes have taken place in San Francisco in the last two years, especially in the office of the District Attorney, that a new trial would have small chance of ending in conviction.“No reasons are given by the Supreme Court for its order for a rehearing, but presumably they are of a purely technical sort, for the fact of Ruef’s guilt was abundantly proved on the trial.”
Said the Sacramento Bee in an editorial article discussing this order, the day after it was made public, January 24, 1911:
It cannot be denied that this order, by a bare majority of the Supreme Court and—with the single exception of the Chief Justice, by the three of its members least esteemed and respected by the public—has excited disgust and exasperation throughout California. There is a strong popular feeling and belief that the Supreme Court should not thus have interposed to save from punishment the most notorious scoundrel and corruptionist in California, a man known to everybody as having enriched himself by systematic grafting and by the bribery of public servants in the interests of corporations, a man with many indictments resting against him, but convicted only on one.
“What adds to this general disgust and indignation over the Supreme Court’s order is apprehension that the rehearing before that tribunal may result in the grant of a new trial for Ruef, a reversal which in all probability would be equivalent to a final discharge. Such changes have taken place in San Francisco in the last two years, especially in the office of the District Attorney, that a new trial would have small chance of ending in conviction.
“No reasons are given by the Supreme Court for its order for a rehearing, but presumably they are of a purely technical sort, for the fact of Ruef’s guilt was abundantly proved on the trial.”
[479]The Cartwright resolution was in full as follows:“Whereas, The Supreme Court of this State on or about the 23rd of January, 1911, rendered a decision in the case of the People of the State of California vs. Abraham Ruef, in which the defendant is granted a rehearing; and“Whereas, Various newspapers have published criticisms condemning said decision, and intimating that the Justices participating therein were controlled by corrupt and unworthy motives; and“Whereas, The integrity of our courts has been frequently assailed by public speakers and by many of our citizens, all of which tends to destroy the confidence of The People in the purity and integrity of our courts of justice; be it“Resolved, by the Senate, That the Assembly be requested to appoint a committee of the Assembly, such committee to be authorized, empowered and instructed to investigate the whole subject matter and particularly to investigate said decision, the grounds upon which the decision is based and the conduct of the Justices of the Supreme Court in relation to said decision, and that the committee report to the Assembly the results of such investigation, with such recommendations as to the committee may seem meet and proper in the premises; be it further“Resolved, That said committee shall have power to summon witnesses, and to send for persons and papers and to issue subpoenaes and compel attendance of witnesses when necessary.”
The Cartwright resolution was in full as follows:
“Whereas, The Supreme Court of this State on or about the 23rd of January, 1911, rendered a decision in the case of the People of the State of California vs. Abraham Ruef, in which the defendant is granted a rehearing; and
“Whereas, Various newspapers have published criticisms condemning said decision, and intimating that the Justices participating therein were controlled by corrupt and unworthy motives; and
“Whereas, The integrity of our courts has been frequently assailed by public speakers and by many of our citizens, all of which tends to destroy the confidence of The People in the purity and integrity of our courts of justice; be it
“Resolved, by the Senate, That the Assembly be requested to appoint a committee of the Assembly, such committee to be authorized, empowered and instructed to investigate the whole subject matter and particularly to investigate said decision, the grounds upon which the decision is based and the conduct of the Justices of the Supreme Court in relation to said decision, and that the committee report to the Assembly the results of such investigation, with such recommendations as to the committee may seem meet and proper in the premises; be it further
“Resolved, That said committee shall have power to summon witnesses, and to send for persons and papers and to issue subpoenaes and compel attendance of witnesses when necessary.”