The San Francisco call., 1907-01-22
GRAF TIERS REVEAL
A REMARKABLE
DEFENSE
Attitude Before Supreme
Court Indicates Wild
Fear Of the Fate Ahead
PETITION FOR WRIT
EMPTY PROCEEDING

lawyers of the grafters took their case
and their tactics before the Supreme
Court of the State yesterday. They
consumed the day In taIk-talk which
was often SO irrelevant that the learned
Justices were compelled to interrupt
them and inquire as to which pnrticu-
lar technicaIity they were addressing
themselves. And when the hour OF
adjournment came at the close of the
afternoon session they had made no
perceptible progress.
Yet 1t was significant that four of
the seven justices were in favor of
throwing the habeas corpus petition
out OF court without a hearing. Chief
Justice Beatty voted with the minority
rather than take the fBll burden of the
peremptory decision upon himself, and,
speaking for the court, granted the
petitioners the right of hearing.
The lineup of the Justices on the
question of giving the Mayors lawyers
the opportunity for further delay was
interesting as showing the inclination
or the Judges. Justices Henshaw,
Mcfarland and Lorrigan were favor
able to the request of counsel for
Schmitz. Against them were Justices
Sioss. Angellotti and Shaw. AS the
decision fell upon the Chief Justice in
the equal division of the bench, he
expressed himself as unwilling by his
single vote to bar the lawyers for the
grafters from the opportunity to argue
HENEY WINS HIS POINT
The first point that came up for de-
cisfon was whether the return, which
had been prepared by the District At
torney's office, setting forth the fact
ri lain hry he
Mayor had been merely voluntary,
should be received by the court In
place of that which the Sheriff had
signed after erasing this admission. 1t
was decided that the paper as drawn
by the District Attorneys Office should
be received, either as a return or as
an affidavit" 1t not being considered
material what name was applied. To
this first decision Justice Mcfarland
dissented, holding that no one could
make the return save the Sheriff over
his opinion the other Justices held that
there was material in the other paper
which should come before the court
and to which the Sheriff was not
competent TO testify
Then Heney urged that the rule of
the court as laid down in the Dow case
was applicable. 1t being that where the
imprisonment was shown to be merely
voluntary and lasting no longer than
was necessary to file the petition for
the writ IL would not be considered
He stated that the precedents required
the court to refuse to consider the pc
tition on this ground. Campbell re-
piled and treating the several techni-
oalities In an argument which became
desultory he succeeded in getting
things to a pass where the Chief Jus
tice was compelled to ask for a clear
statement of the points on which
Campbell relied.
DEFENSE Is REVEALED
Then the really fine points of the de-
fense were revealed.
I'VE hold that the indictments are
really so much blank paper" said
Campbell, for they do not state a
public offense"
But you must admit that extortion
is public offense defined in the Penal
Code" interrupted Justice Shaw.
"Quite true, your Honers, butt be-
gan Campbell, and then he assured the
court that he and his associates had
discovered n remarkable technical de-
feet, and that they were prepared to
argue that there was NO provision
in the codes of California to the effect
that any of the appurtenances of n
French restaurant were prOperty-in a
strictly legal sense, be In understOod
IL was a business, IT was true, but IL
was not property. Hence 1T was i'm
possible to commit crime against
property where mo property existed.
And as Schmftx and Ruef had only con-
Understanding to the indictments
against French restaurants they had
committed NO crime which the law
could recognize. For I'm extortion there
must be property from which to extort,
and In these cases there was NO HprOp-
erty."
Accustomed to fine points of legal
definition as they were this one
seemed to strike the court as some
what extraordinary. Justice Shaw
suggested that counsel seemed to be
addressing themselves to the merits of
their case. and that it would be bet
ter to begin with the first point, which.
TO mis- mind, was the question whether
the court ought not to refuse to con-
slider the matter at all on the ground
that the whole thing was faxed He
did not say faxed" but 1t appeared
that such was his meaning in the ver-
nacular
Lawyer Campbell proceeded to do
this and said that although Schmitz
mad been allowed to go at large, vet
the drain upon his fortune arising from
the fact that he had been frequently
called upon to furnish bail had been
exceedingly annoying, and in his opin-
ION the supreme Court ought to put a
stop TO 1t at once.
ADMITS IMPOSITION
Campbell was forced to admit that
the Imprisonment which the Mayor
mad suffered has been very mild and
purely voluntary, but he said that the
city officials needed the at
tention the Mayor was precluded from
giving them owing to his occupation
furnishing bOnds
The discipline of the various city
offlces has become lax" was the way
he stated It.
Heney replied that the defendant had
his remedy in demurrer in the court
below and that for two months he
mad refused to avail himself of this
way OF presenting his point-a way
which would insure a speedy result
He argued that for the Justices of the
Supreme Court to take the case out
OF the hands of the lower court at this
time would be equivalent in effect to
presuming that the lower court would
decide the point enormously.
Then Campbell delivered himself of
a resonant~threat to take the matter
TO the Supreme Court of the United
states III the court he was addressi
did not grant the writ. Justice Renffv