Note 462 — Chapter XXVIII · Dismissal of the Graft Cases.

“I think your Honor well knows,” Fickert had said, “that certain defendants in this particular class of cases, that there have not been produced here in Court, and I do not think ever existed, any evidence against them. I allude to Mr. Abbott and Mr. Mullally. And I so informed you in your chambers, and you in words confessed that proposition.”

Judge Lawlor took this statement up. The following is from the transcript:

“The Court: Now, before you pass to those other cases, in regard to these two cases do you make the statement that I made any statement to you, in the presence of Mr. Berry, that I said there was not sufficient evidence?

“Mr. Fickert: I so informed you, and you, in effect, so stated.

“The Court: Did you so understand it, Mr. Berry?

“Mr. Fickert: That there was no evidence against those men?

“Mr. Berry: I remember Mr. Fickert saying he did not consider there was any evidence against those men, but I do not remember the Court’s reply: I do not remember that the Court did reply.

“The Court: I did not. It is not the province of the Court to pass upon the facts in a criminal case. The facts are placed before a jury, and the jury pass on the facts.

“Mr. Fickert: I am certainly not mistaken in that matter.

“The Court: You are certainly mistaken in that matter; I was careful not to make any such statement.”