The second trial of Patrick Calhoun was commenced on July 19th, 1909 (case No. 1437). Owing to the illness of one of his counsel the trial was suspended on August 16th, 1909, and resumed on September 30th, 1909. On the following day the trial was ordered continued until November 15th, 1909, on motion of the defendant, upon the ground of the pendency of a municipal campaign.
On January 8th, 1910, Mr. Charles M. Fickert assumed the office of District Attorney.
On February 7th, 1910, the District Attorney moved the Court to dismiss the remaining charges against these defendants (Sec. 1385 Penal Code), which motion was by the Court ordered denied. (Sec. 7, Art. I, and Sec. 19, Art. VI of the Constitution; Secs. 1041, 1042, 1126, 1385, 1386 and 1387 Penal Code.) On February 14th, 1910, the parties announced that they were ready to resume the trial in case No. 1437 against Patrick Calhoun, but the Court continued the case for trial until February 17th, 1910. On the last named day the cause was ordered continued for trial until April 25th, 1910.
On April 25th, 1910, the four defendants interposed a motion to dismiss the remaining indictments against them. The further hearing of the motion was continued until July 29th, 1910. On the latter day the causes were continued until this time.
Two things are chiefly responsible for the Court’s action in respect to the remaining indictments since the District Attorney moved to dismiss them on February 7th, 1910—first, the Court’s apprehensions based on the declared attitude of the said District Attorney toward the remaining indictments, and, second, the absence from the State of James L. Gallagher, a material and indispensable witness in the said causes. The second reason will now be considered.
It was the theory of the People in the five trials referred to that Abraham Ruef represented the defendants in the alleged bribery of the members of the Board of Supervisors, and that James L. Gallagher, one of its members, in turn represented Abraham Ruef in the transactions. In this way the Court is able to determine that the testimony of this witness is material, and now holds, as a matter of law, that unless additional testimony is produced, it is indispensable to the establishment of the res gestae.
In the early part of December, 1909, it became known that the witness had departed from the State. Up to the present time it has not been shown whether he had been formally subpoenaed or was otherwise under the authority of the Court to appear as a witness in the trials of the remaining indictments. If he is subject to the authority of the Court in any of these cases his absence would constitute a criminal contempt, and he could be extradited from any other State having provisions of law similar to those of this State. (Sub. 4, Sec. 166, and Sec. 1548 Penal Code.) In this connection it may be proper to point out that practically ever since issue was joined on these indictments they have been on the calendar for trial, and that during the trials referred to the cases not actually on trial were from time to time called and the witnesses admonished by the Court to appear on the deferred date. But it has not been ascertained whether on this manner the missing witness has been so admonished to appear so far as the remaining indictments are concerned.
In the month of January, 1910, the Court directed that all persons who could give testimony concerning the absence of the witness be subpoenaed. On January 24th, 1910, the first hearing was had, and on several occasions thereafter witnesses have been orally examined on the subject. From this oral testimony it is difficult to determine the intentions of the witness concerning his departure from and his return to the State. It seems that in the latter part of November, 1909, he left for Europe, accompanied by his wife. Robert F. Gallagher, a brother of the witness, testified in effect that the witness never stated he intended to absent himself as a witness in the graft cases and made no suggestion of that nature; that he, Robert F. Gallagher, gained no such impression from anything he did say, except that it was a disagreeable situation for him to be a witness; and that their talk proceeded along the line that there was not going to be any future trial in the graft prosecution. This brother testified further:
“He did state on one occasion something to the effect that Burns had disappeared and that Heney had disappeared and that there wasn’t any prosecution; that the incoming District Attorney would not certainly be in earnest in the prosecution.”
Other witnesses testified to a variety of facts touching the departure of the witness from San Francisco and his declarations on the general subject. Dr. Alexander Warner gave testimony to the effect that he went to Europe on an Atlantic steamer with the witness and his wife. Thomas J. Gallagher, another brother, among other things quoted the witness to the effect that he was going to Europe, that he might settle in an eastern State, that he made no secret of his purpose, and that William J. Burns, special agent of the former administration in the District Attorney’s office, knew of his intention to leave. Nothing definite appears in the oral showing concerning his intentions on the subject of his return, and so far as that showing is concerned the point is more or less involved in conjecture. But on July 29th, 1910, Frederick L. Berry, the Assistant District Attorney, assigned to this department of the Court, filed an affidavit embodying clippings from the local newspapers of the previous month, which state that the witness was, at the time the articles were written, in Vancouver, B. C. From these clippings it appears that the witness intended to permanently locate in Vancouver. The only tangible evidence from the witness himself, however, is found in his letter to Thomas J. Gallagher under date of June 29th, 1910, in which this excerpt appears: