The Birmingham age-herald., 1908-01-10
District Court of Appeals Sets Aside Judgment Rendered
 h the Former Case
MUST CONTINUE IN
 PRISON FOR AWHILE
Charges of Bribery Are Yet To Be Handled By the Grand Jury In the Cases of Schmitz and Ab-
 raham Ruef.

San Francisco. January 9.-The district court of appeals handed down a decision today setting aside tho judgment In the case of former Mayc. Eugene L. Scbin'iz, convicted of extoi.icn in the French es- taurant case. Ace Reuf also benefits by he ruling of the upper court, for accord ing to it's decision, he peladed guilty to an act that was not ar offense against the laws of the state.
 According to the appellate judges the compelling of French restaurants to pay fees to Abe Ruef vas not crime, even the a Ruef dividea the fees with the Mayor.
 After discussing the point thee ourt re- versed the jrtsn,cnt against Schmitz on the ground that no acts constituting q erims had oAen proved against him Abe Ruef. who lea lei guilty to extcItlrs money from the French restaui ants, is tt fe equally snltl.ss.
 The de ision wipes out the French res taurant ca.es, and pending charges of extortion against Schmitz and Ruef must be dismissed. Roth are now entitled to release on bail. if they obtain tho neces- sary bondsmen they can remain at liberty until such time as jury finds them guilty on one of the indictments charging them with receiving bribes from corpora tions. Owing to the number of cases asainA- tnS ss1ssf figured at siO, GOO a case, would reach an enormous figure.
 Three Judges Decide.
 The judges of the court which rendered the decision in favor of Schmitz and Ruef are J. A. Cooper Frank H. Kerrigan and Samuel P. Hall.
 Schmitz and Ruef cannot take advan- tage of the decision for 60 days The pros ecution has 20 days in which, to ask for a re-hearing. Then the appellate court will have 10 days to consider the applica- ton. When that is done the prosecution will go through the same procedure in the supreme court, which will take the same length of time. Consequently Schmitz and Ruef will still be kept in the county jail for two months at least.
 Assistant District Attorney Henry was in consultation this afternoon with Dis trct Attorney Langdon. He has not yet received a copy of the lengthy decision of the appellate court in the Schmitz case, and until he has read and consid- cred IL care1ully, ne declines 10 comment on the judgment rendered.
 The decision was written by Justice Cooper. The opinion comments on Judge Dunne's ruling, and says he erred in ad- mitting hearsay evidence.
 Tn our opinion" said Justice Cooper the ss-examination was entirely im- proper, and was not confined to the mat ters on which the defendant was ex- amined in chief"
 This had reference tO the answer Schmitz gave in regard to the payment to him a part of the S5O00 contributed by the restaurants.
 Erroneous Rulings.
 The attorneys for Schmtz had at the trial questioned Ruef as to whether he was testifying in expectation of immun- ity. Judge Dunne refused to permit any of these questions to be answered, hold ing that they were not proper cross-ex- animation. The appellate court says:
 ''These rulings were erroneous and high 1y prejudicia to the defendant
 The decision comments on Ruef's hay ing pleaded guilty to the same charges and then taking the witness stand against one who had been his friend.
 His conduct,' said the appellate judges, was such that under the plain provisions of the penal code his evidence was branded so that the defendant could not have been convicted upon it without corroborative testimony"
 Commenting on the contention of Schmitz's attorneys that there was no threat to do unlawful injury, the court declares that:
 eve are clearly of the opinion that the Indictment is insufficient, because it does not allege or show that the specific in jury threatened was an unlawful injury Ut Is not an unlawful act," reasons the court ito threaten to hold up the licenses of the restaurant keepers or actually to do so."
 Today's decision will have the effect of invalidating the other four indct- ments charging Schmitz, as well as Ruef with extortions and renders null the plea of guilty made by Ruef, as the appellate court held that no crime has been com mitted.
 By this reversal it is feared that the prosecution has lost its hold upon Ruef, and it was freely predicted tonight that the former political boss would now re- fuse all overtures for immunity wholly or in part to testify in the bribery graft cases and fight every indictment.
 They are still pending against Ruef 126 indictments charging bribery which total bail may be s1,170,0oo and Schmitz might have to get bonds for s45O,00O on the 10 indictments that remain against him to secure his liberty.
 
 Car Stake Case.