Los Angeles herald., 1907-06-16
MAYOR SCHMITz
REF j SED BAIL;
ORDERED TO CELL
Sheriff O'Neil Scored
by Judge
Court Deals with Convicted Official as
Though He Were a Private
Citizen and Grants Him
No Favors
Rv Associated Pres..

BY Associated Press-
SAN FRANCISCO, June 15.-Mayor
Schmitz of San Francisco is again a
prisoner tonight, and if Sheriff O'Neill
makes good his promise to Judge
Dunno, the head Of the municipality is
occupying a cell.
mo bail for Eugene E. Schmitz," the
convicted mayor of San Francisco, was
the ruling made this morning by Judge
Frank H. Dunno in the application
made this morning by the mayors
counsel that he be given his libetG
under bond, pending sentence, which
the court will pronounce June 27.
Judge Dunno adopted as his own the
stand of the prosecution that in the
eyes Of the law the mayor is no diff
ferent from any other person on whom
a jury has set the brand of felony.
Former Judge j. C. Campbell, the
mayors chief counsel, made formal
motion for the admittance of his client
to bail and in support thereof read an
affidavit In the affidavit the mayor
says that by reason of being compelled
to give almost his whole time and
attention to his trial for the past four
weeks, public business requiring his
attention had been delayed and there
is now a large part of it pending and
undetermined.
Under the items of public gravity
mentioned in the affidavit are the ex-
animation and approval of the munic-
ipal budget for the fiscal year 1907-S,
and the proposed construction of the
Geary street railway, which is to be
municipality owned. The mayor says
that street improvement and repair and
reconstruction of public buildings also
require his personal, official attention.
Wherefore concludes the affidavit,
.affiant alleges that this is an extra
ordinary occasion in which the court
ought to. exercise its discretion in
favor Of granting bail to affiant.
Langdon Appeals
District Attorney Langdon responded
in a brief speech opposing the motion.
He said that Eugene e. Schmitz, con-
victed of felony, appeared before the
court, not as the mayor of San Fran
cisco, but as an ordinary citizen and
possessing no unusual or extraordinary
read he denied categorically the allie
cations of the mayor as to public re-
quirements of his personal attention
He quoted section 1000 of the penal
code
"a prisoner committed to the county
Jail for trial or for examination, or
upon conviction for a public offense,
must be actually confined in the county
Jail until he is legally discharged; and
1,4 f, - I,,,-
of the Jail, except by virtue of a legal
order or phrase, it is an escape.
Continuing, Mr.. Langdon said: "The
supreme court of the state of Califor-
mia in construlng that section held as
follows in the case of Peterson against
the superior court of the state of Cali
fornia
"'He the defendant) is therefore to
be confined in the county Jail and the
sheriff can have no authority of his
own motion to permit him to appear
in court or elsewhere or to allow him
to go outside of the Jail for any pur-
pose. # the sheriff does voluntarily
permit him to go outside, either with
or without an escort, the sheriff him
self is guilty of permitting an escape
"There is no express authority for
the superior court to enlarge him with
out bail, except for the purpose of al
lowing him to appear ip court to make
his defense to the charge pending
against him and possibly to appear for
the prosecution of his appeal"
Mr.. Langdon quoted to the court the
following provisions of the San Fran
cisco charter: when, and so long as
the mayor is temporarily unable to
perform his duties, a member of the
board shall be chosen president pro
xAA Iaon NJ a
vacancy occurs in the office of mayor
it shall be filled for the unexpired
term by the supervisors"
Says schmitz Is Not Needed
In conclusion he read as follows from
his affidavit: "And therefore it is not
necessary that this defendant shall
perform any of the duties specified in
his affidavit, or any of the duties spec
Of supervisors has the power to, and
should at once, select an acting mayor.
'This respondent further alleges that
no extraordinary circumstances have
occurred since said conviction, nor do
they exist which would entitle this
court, or the judge thereof, to exercise
any discretion to admit said defendant
to ball. and none of the matters speci-
fed in said affidavit will be improp-
5rly DerIOrIu6Q DSCduSo Sdlu uSlSiludAlI
personally attend to same.
Wherefore, the respondent prays for
the application for bail herein by the
defendant be denied"
In announcing his decision Judge
Dunno said: "It has been the invariable
custom of this court to order defend
ants into the custody of the sheriff |
after their conviction by a jury. 1t is
1uite true that the defendant Schmitz
appears here, not as the mayor of San
but precisely as any other
person. No discretion in the
disposition of his person rests with the
aw and certainly none rests with this
court. The motion is denied"
Mr.. Langdon, whose mettle was
the other day by some
saucy answers the sheriff gave him
N reply to official questions as to
whether the mayor was really being |
confined in accordance with law, ad-
iressed the court on the point of the
mayors confinement. He said the
sheriff under the law had no discre-
ion whatever, but must actually con-