The San Francisco call., 1907-06-23

construction OF WHAT the lCIuto NSAAT
victed or conviction mean in CaliIor-
MIA Many lawyers have contended that
quite regardless of the desirabillty OF
SchmitZ' removal he would under the
law retain his Office until court OF
last resort had confirmed his convietion
or until his term expired. This cialm
was based on the theory that Schinltz'
convicted in fact, would not be convict
ed in law until the supreme court had
passed upon the judgment OF coh'le-
tion-
This difficulty disappears in the ight
OF decisions by the supreme court oe-
fining conviction Of felony TO mean
a verdict Of guilty returned by jury.
In the case Of the People versus Ward
reported in l34 California reports, the
courts definition is open to but the one
construction. The court said;
tits contended that at the time the
witness testified he had not been. con-
victed of a felony; that TO sustain the
ruling OF the court it must be assumed
as a matter of law that the verdict OF
guilty constituted conviction, lhat
such verdict does constitute convic-
ton within the ordinary as well as the
technical meaning OF the word seems
10 be well settled
Among numerous authorities cited by
the court is a quotation from Justice
q
case Of the United States against Gil
bert. Justice Storey said:
And here. in order to avoid am
biguity. it may be proper 20 state that
conviction does not mean the Judgment
passed upon the verdict; but If the jury,
finds him Cthe party) guilty, he is then
said to be convicted Of the crime where
OF he stands indicted
1t is true that the Ward case did not
IL. of ~ a
public Office. The question involved
was the impeachment Of a witness, but
81 brought squarely and definitely be-
fore the court the necessity Of defining
the meaning OF the word conviction IN
the courts Of California.
Again. the supreme court, in passing
upon the question Of tenure of public
ONCE. has plainly held that section 9Se
Of the political code does, in effect. cre-
ate a vacancy upon conviction of tho
incumbent without subsequent proceed =
ing. In the case OF the people ex rel
T. ]. FIemming, respondent, against J.
de Barth ShOrb and others, the court
said:
The 10 events mentioned, in section
996 are merely conditions, upon the oc-
currence of any one of which the leg
islature has declared the office shall be-
come vacant: not as penalty or for
feiture. but simply as the legal effect
Of the happening of any of the events
mentioned"
On these and other like authorities
the prosecution bases its contention
that Schmitz ceased to be mayor OF San
francisco when he heard a jury of his
peers declare him guilty of extortion.
Assistant District Attorney Francis J.
Heney said yesterday:
In or out Of Jail Schmitz is no longer
mayor OF San Francisco and has not
been since a jury convicted him of a
felony. The Ward case. it is true, does
not involve the question of a public
Office, but it does define beyond ques-
tion the legal meaning of the word con-
viction-"
Heney declined to discuss any pro-
gram the prosecution may have tenta-
lively agreed upon. saying that ASTON
had been deferred until Schmitz re-
ceives sentence, to obviate possible en-
barrassment. Both Heney and Ru-
dOlph Spreckels denied that they had
discussed the matter of the selection
of a successor to Acting Mayor CAL
lagher with members of the board of
supervisors.
It may however be authoritatively
stated that aside from any discussion
with members of the board of super
visOrs me matter has peen very thor
oughly gone into and that the real
reason lot ldlluIe TO secure the ele@-
tion OF a mayor lies in the difficulty Of
selection. The prosecution can. as a
matter of course. compel the board Of
supervisors to elect whom IL chooses,
but it fears to choose hurri<5ly. Be
sides a mayor il is desirable to choose
2 board of supervisors. thoroughly rep
resentatiVe in its constituents.
The representative character Of the
men chosen is, however, but one Of
the minor difficulties. While the
prosecution wants a city government
that may be free of any taint of sus-
picion Of control by the district attor-
neys office, il is quite as anxious TO
secure men who are not only above
suspicion, but are in fact beyond the
control Of Herrin and in consequence
safe from manipulation by the COM
mercial interests now fighting to rem
der the efforts Of the prosecution abor-
tive.