The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1908-05-03


aside the verdict; and this notwithstanding the
evidence adduced at the trial may have been
amply sufficient to prove beyond reasonable
doubt all that was charged in the accusation and
all that il failed 10 charge.
QUESTION INDEPENDENT OF GUILT
In the Schmitz case the defendant after the
verdict OF guilty moved in arrest of Judgment
but his motion was denied and sentence of i'm
prisonment imposed. The law and the ecnstitn-
ton then gave him the right OF appeal and the
right TO have reviewed by the appellate court the
rulings upon his demurrer and his motion in ar
rest OF judgment-the right. in other words to
have it determined whether he had been con-
victed by due process of law. And this, IL IS to
be remembered, was question altogether indie
ever clearly that may have been proved by the
evidence adduced at the trial. 1t was ques-
ton TO be decided, not upon review Of the evil
dence, but upon cold comparison Of the ale
cations of the Indictment with the terms of the
statute defining the crime of extortion. So far
as this ground of the appeal is concerned all
that the court had TO do was to determine upon a
proper construction of the statute. what the ele-
ments of the crime of extortion are and by an
inspection of the indictment to ascertain whether
they were all alleged. II not the judges were
bound by their oaths to reverse the judgment Of
the superior court and to remand the cause, with
directions 10 dismiss the indictment.
SEVERAL PREJUDICIAL ERRORS
In the district court of appeal. which in all
criminal cases except where death sentence
has been imposed is the proper court Of review,
other questions involving the rulings Of the trial
Judge at and after the trial were considered
and decided. and IL was there held that several
defendant had been committed in the course Of
the proceedings in addition TO the error in over
ruling his demurrer to the indictment.
But in the petition for the rehearing of the
cause in the supreme court no question aside
the appeal was presented FOR decision, except
the proper construction Of the statute-the Ques
ton, that is 70 say, whether, according TO the
statutory definition of the crime Of extortion. 1t
&
threatened is induced TO part with his money or
other property must be one to do an injury which
aside from and independent of Its evil motive
would be unlawful. e.. either punishable GRIM
inally or which would at least furnish a ground
for 8 civil action for damages.
THE ONLY QUESTION PRESENTED
repeat that the only question presented for
decision was the question Of statutory construc-
tended before the supreme court by the attorney
general or by the district attorney OF San Fran
By the learned counsel whose names are signed
10 the petition for g rehesring, that the indict-
Jury Of the character Indicated. What 1t did al
lege on this point. and all that 1T alleged was
that one E. E. SchmitI without showing that
he was mayor of the city or that he had any Of
commissioners greater than or different from that
OF the humblest private citizen(, and one Abra-
ham Ruef without showing that he had any
such power innusnce) had told certain keepers
of restaurant that they could, and had threat
tanning renewal of their license 10 sell liquors
etc. The indictment. in other words, had no
more force In legal contemplation than II II had
been directed against Jack Stiles and Richard
Noakes, for though the facts that SchmiE was
mayor and Ruef the political boss of the city
may have been as notorious IN San Francisco as
the FIRE earthquake, no lawyer would contend
for moment that they were facts of which
court could take judicial notice in passing upon
the sufhciency OF the indictment.
THE ONLY QUESTION CONSIDERED
ment then, indeed, the court could have consid-
cred in that competition the provisions Of the
charter of San Francisco which empower the
mayor to appoint and remove at will the mem
which invest that bo-ri with discretion to issue
refuse licenses 10 sca liquors at retail And
II by means Of these legations otherwise it
had been made 10 car that the defendants
had caused the sif -nts TO believe that they
sioners 10 Iejec. their application regardless Of
its merits, ] have never doubted that the indct-
ment would have been sufficient for this would
have been threat TO do an unlawful injury-an
injury which by reason of the corrupt abuse Of
official power employed TO accomplish it would
But the court being obliged, as have shown
TO LOOK exclusively 10 the face Of the indictment
in determining its validity, and seeing only
charge against two private persons could see
nothing unlawful in the threatened injury, for IL
could not be assumed that SUCH private persons
could prevent the issuance of the license other
wise than by adducing good reasons why. In the
exercise OF their discretion, the police commits
ei0QerS
the applicants were unfit persons or their house
an improper place. To oppose and prevent the
issuance Of license on such grounds would be
perfectly lawful In the absence OF corrupt or
malicious motive, and therefore the question
finally resolved itself into this: Did the purpose
of the threat 1.-THE extortion of money! convert
into an unlawful injury that which, in the alb
sence of such motive. would not have been either
criminal or actionabIe? The supreme court de-
cided that It did not and this all that it
decided. 1t was. In fact, the only question pre-
scented for decision
question as 10 the meaning Of the indictment
It was practically conceded by counsel repre-
senting the people that the threatened injury
threat made It actionable. And the only fair
and candid criticism of the opinion Of the court
seen-that of Professor Boke of the state uni
versity-the only such criticism not based upon
gross misstatement nisconcept0n OF the
question decided-shows very clearly that this
was the only debatable question IN the case. He
il is true, expressed the opinion that In this
and ii may be conceded that the point, II new
one would have been fairly debatable.
BY NO MEANS A NEW QUESTION
But it happens that the question was not new
either IN this state or elsewhere, II had been
decided by the supreme court of California after
elaborate argument in carefully considered
opinion containing review OF the authorities as
long ago 1893 in the case of Boyson vs..
Thorn. reported in the nincty-eighth volume Of
California Reports. at page siS The opinion In
that case prepared by tse late Judge John
HAYNES and concurred IN ey Jackson Temple,
Niles Searls. T. B. Mcfarland. ]. ]. de Haven
and W. F. Fitzgerald. Although the two sur
Fivors Of that group OF judges may still be
deemed legitimate objects of detraction. il will
not be denied that the fame Of the other fonr is
secure They have left behind them stainless
regulations for integrity In their public and pri
Tate relations and their professional ability and
judicial fairness have never been questioned.
Now what did they decide in that civil action
where the sole question in the Schmitz
directly involved? i quote the language OF the
opinion from page $751;
'Tt is truism OF the law that an act which
does not amount TO a legal injury cannot be ac-
tionable because II is done with bad intent"
Conceding. as 1t must be conceded. that courts
In other jurisdictions have some times given ex-
preston TO a contrary view upon this question,
il win be that 1t was not open question
in +bfS when the Schmftz case srose and