See footnote [459], page [426].
“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.”
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.”
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.’