Albuquerque morning journal. [volume] (Albuquerque, N.M.) 1903-1926, 1908-01-10
California Court of Appeals
Hands Down Decision Re-
leasing Imprisoned Mayor Of
San Francisco,
BELIEVED RULING ALSO
MEANS FREEDOM FOR RUFF
True Bill Found Against Defen-
dant Found Defective in That
1t Alleges No Offence Against
the Laws,

San Francisco, Jan. 9.-The appel
ate court of California today handet
down A decision which releases eN-
Mayor Schmitz from custody and de-
clares that the indictments found
against him on the charges of eNtor-
ton are void 1t is believed that the
decision will also affect the case Of
Abe Ruef.
The, decision was written by Justice
Cooper The opinion comments on
Judge Dunne's ruling and says he
erred in admitting hearsay evidence.
IN our opinion" says Judge Cooper
"the cross examination was entirely
improper and was not confined to the
matters on which the defendant was
examined in chief"
This has reference to the answer
Schmitz gave in regard to the pay
ment to him of part of the $4,000 con-
tributed BY the restaurants.
The attorneys for Schmitz had at
the trial questioned Ruef as TO
whether he was testifying in e.-r,yvta-
ton of immunity Judge Dunno re-
fused to permit any Of these ques-
tions to be answered. holding that
they were not proper cross-examina-
tion. The appellate court says:
"Those ruling were erroneous and
highly preiudicial to the defendant
The decision comments on Ruel
having pleaded guilty to the same
charges and then taking the witness
stand against one who had been his
friend.
'sHis conduct" said the appellate
Judges. was such that under the PLAIN
provisions of the penal code his evi-
dence was branded so that the defend
and could not have been convicted
upon it without corroborative teSti-
mony."
In passing upon the legality OF th'
indictment, tho appellate court SAID;
"Thc Indictment is claimed to be ~
valid for two reasons;
"First, that It does not allege any
threat to injure property; and second
that it does not aIlege that the thrca
was to do unlawful injury
The gist of that portion OF the u'
cision relating to the allegation tAa
there was no threat to injure propc L.
is contained in the following s'h
tcnce
"There is no allegation as to n.
threat to iniure any business in dlie3
terms, but only the threat to preVch
the parties from obtaining a licens
to sell liquor
A license to sell liquor is not prop
erty in the ordinary sense Oh III
word, says the court
In treating Of the secora contention
of Schmitz's attorneys that there wa
no threat to do unlawful injury IN
court declares that:
1--WE are clearly OF the opinion ina
the Indictment Is insufficient pecau9
it does not allege nor show thal III
specific injury was unlawful INJURY
IT is not an unlawful act, reason
the court. to threaten to hold up Tn
licenses of the restaurant Keepers
actually to do so,
"Any one" reads the decision ma
the right to go before the board {
police commissioners, If that body WI
hear him and object to the granuh
of license to sell liquors to a perso
who is keeping a place in violation
the law. He has the right to thfeate
to do so. He would not be moral
justified in obtaining money TO lhdu'
him not to carry out his threat n'
if he did receive money under sue
circumstances he would not con
within the provisions of the statute
is necessary to crimes to allege TN
the act fas unlawful
The concluding paragraph oil II
decision reads.
MANY other questions are discuss'
as to refusing certain instructor
asked by the defendant and as to q
insufhciency of the evidence to JUST
the verdict, but in view of the holdn
as to the indictment it would serve
useful purpose to discuss them T
Judgment and order are reversed al
the trial court Is directed to susta
the demurrer to the indictment and
discharge the defendant as to such
dictment"
Todays decision will have the effe
of invalidating the other four indie
ments charging Schmitz as well
Ruef with extortion and renders vo
the plea of guilty made by Ruef,
the appellate court held that no crir
was committed.
BY this reversal it is feared tn
the prosecution has lost its hold up