“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.
“At the present time,” said Judge Lawlor in making this announcement, “it is the intention of the Court to deal with this matter, so far as the absence of that material witness is concerned, and to suspend judgment as to the ultimate attitude of the District Attorney in respect to this and other causes before the Court. I do not intend to sit here and preside over a trial if for any reason, whether it seems sufficient to the District Attorney or not, the Court reaches the conclusion that the case is not being prosecuted in good faith. The Court, in pointing out the duty of the District Attorney on February 7th, was not inviting a suggestion that we should proceed to trial without regard to the outcome of that trial or to its particular features or the manner in which it should be tried. The Court will try no case, it will not consume its own time, it will not consume the time of others, it will not allow the expenditure of public money for the mere purpose of going through the forms of a trial. The Court must feel in the end that the people are represented. Now, what its final view shall be as to the District Attorney will be announced when the Court deems that anouncement pertinent and proper. The Court has its own views as to what may be done within the exercise of its prerogative in the event that it does not feel that the people are represented, and will act upon its own judgment when that time arrives. At this time the witness being absent from the jurisdiction of the Court, the Court points out to the District Attorney his duty under Section 1052 of the Penal Code, to move for a proper continuance of this action until the Court can be advised as to whether or not that witness can be produced.”
Later, when Fickert suggested that all criminal causes be transferred to some other department where the judge might be of a different opinion, Judge Lawlor said:
“I have had no occasion to find fault with your acts in respect to any other causes that have been brought before this Court. I am endeavoring to have your mind concentrated upon one thing, and that is the matters which are before this Court, and for the prosecution of which you, under your sworn oath of office are required to give your full attention to. Your own statement in support of your motion to dismiss this case evinces in my judgment a disposition not to do your duty. However, I still say that this matter I bring to your attention, and ask you to give full reflection upon the matter. I have no desire in any manner to hamper you. The process of this Court is at your disposal at all times, in all causes, and if any person or set of persons be found to be interfering with the due administration of Justice you will have a full hearing before this Court in order that you shall not be so hampered. Your statement concerning these cases is calculated not alone to affect the fortune of these undetermined cases, but it is well calculated to affect the disposition of the other causes and other charges wherein convictions were had against other persons growing out of this alleged transaction, and which cases are now on their way for a determination to the courts of appeal in this State.”