The San Francisco call., 1910-08-04

therefore, before the court of the
completely of the parties, should the
pending application be granted at
this time?
A person accused Of crime is en-
titled to a speedy trial. (Section 13.
article /, Constitution
This fundamental right has been
made the subject Of statutory pro-
section 1882 of the Penal Code pro-
vides that:
Unless good cause to the contrary is
shown, the court must order the prosecution
dismissed if the indictment is not brought
to trial within go days after the fling
thereof.
More than so days have run in fa-
vor of this application. and the ques-
ton presented at this time is
whether the showing touching the
absence of James L. Gallagher shall
constitute good cause" within the
meaning Of the law. This term must
be construed and applied according
to the peculiar circumstances of
each case. 1t should be interpreted
so that the rights of both parties
shall be equally recognized The
absence of a material and indispen-
sable witness for the people would,
under proper circumstances, con-
st1tute good cause, provided that
good faith and diligence are shown
in the effort to produce the witness.
In re Bergerow (133 California, 349)
is a leading authority on this ques-
tion and Is almost invariably cited
in support of applications of this
character. 1t is proper to point out
that in the prevailing opinion the
court studiously eliminates from the
pertinency of the authority the alb
Of q
prosecution.
The conclusion I have reached is
that under the law and the sur
rounding circumstances, including
the recent action of the witness,
that another reasonable continuance
should be directed in order, IL pos
sible, that the duty of the court in
the premises shall be rendered more
clear. AT this time the court is not
satisfied that the relief sought
should be granted. On the other
hand it is realized that a final de-
cision should not much longer be
delayed. In the determination of
recognizing the rights OF the de-
PENDANTS, is mindful of the rights
of the people and it's own sense of
responsibility and is anxious to
avoid decision which will serve as
mfschievous precedent.
1t is idle to attempt to ignore the
inherent proba bilities of the situ-
alton presented. A material and in
dispensable witness is absent from
the state and the court is called
upon to Intervene because the dis
trict attorney has at practically
every turn followed the lead of
these defendants. Through the in
fiuence of unusual agencies the law
has broken down so far as these
cases are concerned. The crimes
charged are of the most serious ma
ture. because such criminal activity
tends to sap the very foundation of
government The statute of limita-
tions has run against these charges,
and If the application is granted,
therefore, there can be no further
prosecution, no matter what devel-
opments may follow. (Section 500,
Penal Code.) In the trial of Patrick
Calhoun the court admitted evidence
of a most extra ordinary character
on the theory of the people that it
tended to show guilty consciousness
on the part of the accused. This
evidence was not controverted. Tt
included the dynamiting of the home
of the witness under circumstances
which threatened not only his own
life. but also the lives of several
other persons. certain other
building, the property of the wit
ness, was subsequently blown up
by the use of dynamite. If the ap-
parent design on the life of the wit
ness had been successful the court
would be less perplexed in deciding
a question of this character 1t is
possible that these experiences and
not the suggested arrangement with
the witness are responsible for his
absence. The evidence also included
an effort to suppress testimony by
an attempt to induce a witness to
leave the Jurisdiction of the court
and other matters of a serious ma
ture.
And, finally. while the court is
clear that it should not base any
action at this time upon the as
sumption that either side is re-
sponsible for the absence of the wit
ness, yet reason and the exercise of
a sound discretion dictate that the
court should act with prudence
Before the indictments should be
finally disposed of every reasonable
effort should be made to get at the
truth Of the situation. The disposi-
tion of grave charges other than on
their merits is not to be encouraged
and should not be allowed, except in
the face of strict legal necessity.
Let the cases be continued until 10
a. m, Monday, August 29, 1910. So
ordered.