Note 460 — Chapter XXVIII · Dismissal of the Graft Cases.
Reading edition
Judge Lawlor was also careful to make clear that if the court proceeded with the formation of a jury, jeopardy would attach to the case. He also pointed out that the statute of limitations had run against the alleged crimes. The following is from the transcript, the questions being directed to Mr. Fickert:
The Court: You are aware that if you proceed to form a jury to try this issue, and the witness does not appear, that jeopardy has nevertheless attached and that the defendant will be entitled to ask for his deliverance at the hands of that jury, whether that witness is produced or not.
“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.