“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’s decision will be found in full in the Appendix, page i.
See [Chapter XV].
Calhoun’s denunciation of Judge Lawlor was as follows: