[317] Heney, in his affidavit, describes the disappointment of Ruef, Ach and Nieto when the case was closed without Ruef being called. Heney says: "I rested the case on behalf of the prosecution in the first Ford trial in this department of this Court on the 2nd day of October, 1907, and the attorneys for the defendant asked for time to consider what they would do about putting in evidence, and Court adjourned for the purpose of giving them such time. I had noticed Henry Ach and Ruef sitting together next to the aisle, which was directly in front of where I sat, and could see that up to the time I closed the case they were anxiously waiting for me to call Ruef as a witness. When Court adjourned they remained sitting and as I passed them Ach stopped me and said in substance, 'Why didn't you put Ruef on the stand as a witness? Are you not going to dismiss these cases against him?' I replied in substance, 'There are a lot more cases to be tried. There will be plenty of opportunities to dismiss these cases if I want to do it.' Ruef said, with one of his most winning smiles, in substance, 'I guess he is going to put me on in rebuttal just as he did in the Schmitz case.' I replied in substance, 'Oh, I don't know about that, Ruef. I don't like to try all my cases the same way.' I started to leave and Ach stopped me as I had taken only a couple of steps, and said in substance, 'There isn't any change in the situation, is there in regard to Ruef?' I smilingly and meaningly replied, in substance, 'Not a particle, Henry, since our last talk,' meaning thereby the talk which Ach and myself had on or about the 19th or 20th day of September, 1907, at night in my office in the presence of Dr. Nieto, Dr. Kaplan, William J. Burns and Charles W. Cobb, as hereinbefore set forth. As I made this statement I walked on out of the courtroom and someone stopped me somewhere between there and the entrance door of the building and Dr. Nieto came up to me, all smiles, and said in substance, 'You didn't put Ruef on the stand, did you?' I replied, 'No, I did not, Doctor.' Dr. Nieto then said in substance, 'There isn't any change in the situation, is there?' And I replied with a smile in substance, 'None whatever since our last talk, Doctor,' meaning the talk at my office just hereinbefore referred to, at which Dr. Nieto, Dr. Kaplan and Ach were present. The manner of Ach and the manner of Dr. Nieto when I made this reply to each of them indicated plainly that each understood exactly what I meant."