Los Angeles herald. [microfilm reel] (Los Angeles [Calif.]) 1900-1911, 1908-03-10
CONVICTION
OFMA YORAND
BOSS ILLEGAL
INDICTMENTS ARE HELD TO
BE DEFECTIVE
HENEY AND LANGDoN RECEIVE
HARD BLOW
Attorneys for imprisoned Executive
Will Take Steps to Have Their
Client Released Imme-
diately

SAN FRANCISCO. March 9.-The
supreme court this afternoon by unani
nous vote handed down decision de-
nying the application of the proseeu-
ton in the San Francisco bribery-graft
cases for a rehearing after q decision
by the district court of appeal in the
case of former Mayor Eugene e.
Schmitz, convicted Of extortion In the
French restaurant cases.
Without a dissenting vote among
the seven justices, the court sustained
the appellate court in it's decision that
the indictment on which Schmitz was
convicted was defective in that it did
not aver that Schmitz was mayor, that
Ruef. his co-defendant, was political
boss. practically in control of the CITY,
that as such they were in position
to exercise power and undue influence
over the police commissioners, and that
II did not show that Schnitz resorted
to unlawful means in threatening to
have liquor licenses withheld.
"The decision demonstrates said
Schmitz. that the highest court in the
state believes what l have always
claimed. that | was removed from
office and railroaded to prison.
Upholds Appellate Court
..The contention of the respondent
that the appeal was prematurely
taken" saws the court, has no merit.
The court is unanimous in the opinion
that the district court of appeal was
| correct in it's conclusion that the in
dietment was insufficient in that 1t
did not show that the injury to the
property threatened By the defendant
was an unlawful INJURY
This decision practically nullifes
| Ruefs plea of guilty TO the same
charge, invalidates the remaining four
extortion indictments against tne TOT
mer mayor and Ruef and will enable
Schrnitz to gain his liberty on bail
after eight months confinement In the
county Jail.
Campbell, Metson and Drew, counsei
for Schnitz. announced tonight that
Immediate steps would be taken to-
morrow for the former mayors release
and expressed qualification over the
decision, declaring 1t showed the hlgh-
est court in the state sustained the law
in spite of public clamor and the de-
nunciations and attacks of the press
that followed the dicision of the APP
pellate court.
After dealing exhaustively with the
| law and numerous citations of autnori-
ties. the supreme court says:
sIn this case the Indictment charges
| that the defendant threatened the res
taurant keepers that if money was not
paid him he would prevent them from
obtaining or receiving retail liquor
license and thereby destroy or render
unprofitable their restaurant business,
| of which the sale of liquor at retail
| formed the remunerative part.
at is not stated how the defendant
proposed to do this. or how it was un-
| derstood by the parties that he wouid
| accomplish it. whether by fair persua-
sion and lawful influence over the po-
lice commissioners, or by duress. me-
mace. fraud or undue influence exer-
| cised upon them.
Indictment Defective
'aThis is not a case where it is suffi-
cient to charge an offense in the lang
uage of the statute defining IT. Inc
! court cannot assume in the absence OF
Ian ayerment to that effect that
Schmitz was mayor of the city and as
| such in a position to exercise power
and undue influence over the members
of the police commission, or that Ruef
his co-defendant, was person IN
practical control of the city govern
nent because of his political activity
and influence over the board. nor can
1t be inferred or presumed, wnen II Is
not SO charged, that the defendant
threatened to prevent the issuance or
the license by unlawful means and not
SOLELY by lawful and innocent persua-
sion and argument.
oIt is an elementary principle of
i criminal law that the Indictment must
show that crime has been committed.
In no case can the indictment be aided
nv Imagination and presumption. The
presumptions are all in favor of inno-
cence and if the facts stated, may or
may not constitute crime, the pre-
sumption is that no crime is charged.
Prosecution at Fault
"The attorneys for the respondent
base their application for rehearing
in this court solely upon the alleged
errors OF the district court in refusing
to dismiss the appeal and in holding
the indictment to be insufficient and
expressly limit such application to
these two points.
"They introduce t.eir application
with the statement that they are con-
vinced that upon a full discussion OF
the case, 1T will be found and decided
by this court tnat leVylng Dldckihal'
upon licensed businesses oy the mayor
and political boss OF a metropolitan
community is a crime under the law
of California and should not 20 un-
whipped of justice
This is a gross misstatement OF the
case and of the question to be decided,
as presented by the indictment. We
again emphasize the fact that the in
dictment does not aver that Schmitz
was mayor or that Ruef was politi-
cal boss, or that either had any power
or influence or control over the police
commissioners. or that they threatened
, to use any such power, influence or
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