The Montgomery advertiser., 1908-01-10
SCHMITZ CASE NOW REVERSED
 - FriscoMayor Pronounced
 Guiltless. STAYS IN JAIL, HOWEVER Appellate Court Sets Aside the
 Judgment. Result is That Both schmitx and Abe Ruef Are Entitled to Bail
 r-Msy Not Make
STAYS IN JAIL, HOWEVER

trict Court of Appeals handed ooWh decision today setting aside the judg- ment in the case of former Mayor Eu- gene E. Schmitz. convicted of extortion in the French restaurant case. Abe Ruef. also benefits by the ruling of the upper court for, according to it's decis- ion. he pleaded guilty to sn act that was not an offense against the law of the State.
 According to the appellate judges, the compelling of French restaurants to pay fees" to Abe Ruef, was not crime, even though Ruef divided the fees with the Mayor.
 After discussing the point the court reversed the judgment agaipst Schmitz on the ground that no acts constitut- ing a crime had been proved against him. Abe Ruef. who pleaded guilty to extorting money from the French res- taurants. is therefore equally guiltless.
 The decision wipes out the French restaurant cases. and pending charges of extortion against Schrnitz and Ruef must be dismissed. Both are now en- titled to release on bail. If they ob- tain the necessary bondsmen, they can remain at liberty until such time as . jury finds them guilty on ane of the in- dictments charging them with receiv- ing bribes from corporations.
 Owing to the number of cases against them the bail. figured at $10.000 case, would reach an enormous figure.
 The judges of the court which rem dered the decision in favor of Schmitz and Ruef are: J. A. Cooper, Frank h. Kerrigan and Samuel P. Hall.
 Schrnitz and Ruef cannot take advan-' tage of the decision for sixty. days. The prosecution has twenty days in which te ask for a re-hearing. Then the ap- pellate court will have ten days to con- sider the application. When that IS AHs- rytl the same procedure in the Supreme Court which will take the same length of time. Consequently Schmitz ana Ruef will still be kept in the county jall for two months at least.
 Assistant District Attorney HeneY ;was il, consolidation this afternoon with District Attorney Langdons He has not vet received copy of the lengthy decision of the appellate court in the Schmitz case and until he has read it and considered it carefully he declines to comment on the judgment rendered. Extracts from Opinion.
 The decision was written by Justice roonar The opinion comments on Judge Dunne's ruling and says he erred in admitting hearsay evidence !
 s.In our opinion" says Justice Cooper, "the cross-examination was entirely iin- proner 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 of part of the $5,000 contributed by the restaurants.
 The attorneys for Schmitz had at the trial questioned Ruef as to whether he was testifying in expectation of immu- nity Judge Dunne refused to permit any of these questions to be answered, holding that they were not proper cross examination. The appellate court says:
 These ruling were erroneous and highly prejudiciaI to the defendant"
 The decision comments on Ruef 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, twas such that under the plain provisions of the penal code. his evil dence was branded so that the defend ant could not have been convicted upon it without corroborative testimony"
 Commenting on the contention of Schmitz's attorneys that there was no tareat to do unlawful injury the court declares that we are clearly or the opinion that the indictment is insuffi- ciert because it does not allege nor skew that tfs spec lflr injury threatened was an unlawful injury"
 It Is not an unlawful act, reasons the court to threaten to hold up the licenses or the restaurant keepers or actunt,y to do so
 Loses Hold on Ruef.
 Today's decision will have the effect of invalidating the other four indict- ments charging Schmitz as well as Ruef with extortion and renders void the plea of guilty made by Ruef as the Appellate Court held that no crime has been committed.
 By this reversal it is feared that the prosecution has lost it's hold upon Ruef and it was freely predicted tonight that the former political boss would now refuse all overtures for immunity wholly or in part to testify in the brih- cry graft cases and fight every indict- ment.
 There are still pending against Ruef 126 indictments charging bribery, on which the total ball may be $1,17O,OOO and Schmitz might have to get bonds for $45O, 900 on the forty indictments that remain against him to secure his liberty.
 Heney Back in Frisco.
 San Francisco. Jan. 9.-Francis J. Heney, special assistant to United