The San Francisco call., 1908-11-01
HfNFY REPLIES TO
JUSTICE BEATTY
Assistant District Attorney Pub.
fishes Open Letter Answer
ing Decision
Analyses Arguments and Draws
Upon Codes 10 Show Indict-
ment Was Sufficient


.Iength 20 the arguments made by Chief
Justice Beas4y in support Of the Sehmftz
-extor-ion decision Of the supreme court.
Chief Justicse Beatty, ii viii be recalled,
addressed a long communication to the
Sacramento Bee in which he upheld the
much discussed decision. and now. In
calm, judicial manner. Heney analyzes
the arguments OK Beatty ana draws upon
the codes ard earlier cases 10 show that
the Indictment. declared TO be faulty,
was. in fact, sufficient.
Heney does not make the matter a
personal one. but states at the outset
that IL was not he, but Hiram w. John
son, regarded as one OF the abfest crim-
inal lawyers in California. who drew
the Indictment Taking up the letter
OF the chief justice, Heney quotes to
show that the court was prepared to
sustain the Indictment had il alleged
that Schmftz was mayor Of the city
He then refers TO the codes and to pre-
vious decisions OF the same court to
show that Il had repeatedly taken Judi
cial Notice OF similar circumst tances
Heney quotes from a decision rendered
in 1886. in which the supreme court
said:
The judicial notice which courts take
OF matters of fact embraces those facts
which are within the common knowl-
;, edge Of an or are Of such general no
tOriety as to need no evidence in their
support"
ISSUE WITH APPELLATE COURT
In conclusion the assistant district
attorney joins issue with the appellate
court, which held that the Indictment
did not alIege ''an unlawful injury"
He then quotes from the codes the sec
ton which appears under the captain
What Is Unlawful" The section then
proceeds:
That is not lawful which is:
Il Contrary 10 an express provision
Of law.
%. Contrary to the policy Of express
3 law, though not expressly prohibited;
g. Otherwise contrary to good NOR
It clearly appears that the extortion
would be construed an unlawful injury
under the third section, and very prob
ably under the second.
Heney explains at the outset that his
letter is called forth by the great num-
Der OF interested persons who have in
quired OF him why he did not allege in
the indictment that Schmitz was the
mayor Of the city. He then tells of the
employment Of Hiram w. Johnson, to
whom he refers as 'one Of the ablest
and best criminal lawyers at our bar"
Continuing. Heney says:
Mr.. Johnson prepared those Indictments with
the assistance OF another lawyer, whose ability
4 publicly and frequently acknowledged by the
After the indictments had thus been pre-
pared tley were analyzed and discussed IN my
presence By the learned gentlemen who prepared
them, and after the law on the subject was
fully explained to me approved and used
Finced that these indictments correctly and suf-
dcientiy charge the offense OF extortion under
our statutes.
JUSTICE BEATTY's REASONS
Heney then quotes: from Chief Justice
Beatty's letter to show that he con-
sfdered the failure to state that Schmitz
was the mayor the only error in the in
dictment. In this connection the chief
justice had said in his letter to the
Sacramento Bee:
II these facts (that Schmitz was mayor and
Ruef the political boss) had been alleged in the
indictment then indeed the court could have con-
sidered in that connection the provisions Of the
charter OF San Francisco which empowered the
mayor TO appoint and remove at viii the
hers OF the board Of police commissioners, and
which invest that board with discretion TO issue
OK refuse licenses TO sell liquors at retail. And
II By means Of these allegations or otherwise It
had been made to appear that the defendants
had caused the applicants to believe that they
could snd would influence the police commits
soners 10 reject their application regardless Of
its merits / have never doubted that the indict-
ment would have been sufficient. For this would
have been threat 10 do unlawful injury-an
Injury which BY reason Of the corrupt abuse Of
official power employed TO accomplish it would
have. been actionsble.
CAN'T NOTICE FACTS
In very positive language the SUI
preme court has stated that it could
net take judicial notice Of the facts
y that SchnIitz was mayor and Ruef the
political boss. Heney sums up the
courts position as follows:
It Is thus, in fact. conceded by the learned
that schrnitz was mayor it would have been
sufficient, because the court could then have
influence which the mayor possesses officially
over the board OF police commissioners, and that
therefore, when Schmitz threatened the French
restaurant keeper that be could and would pre-
vent him from securing license the intended
victim was Jusnneo, as reasonable man, In be-
lev1ng that Schmiz possessed the power,
through his official position; to influence the DO
Ice Commissioners, whom Sehmftz had appointed
snd over whom he possessed the power Of re-
novsl. 20 reject the French restaurant Keepers
application for license, regardless of the merits
Upon the same theory the prosecution, con-
yietiOn and punishment OF a man who occupies
a most widespread deterrent effect upon the
Tsss wholesome effect was STRANGELY snls-ent
Immediately after the conviction OF Schmitz and
continued to exert most beneficial influence. up
TO the time that II was completely destroyed by
the decision Of the supreme court reversing lis
conviction. Immediately after that reversal. All
the grafters In San Francisco and their friends
enneared to be inspired With fresh corrrs % t do
evil. The difficulties confronting the Drosecu-
ton in its efforts 20 cleanse San Francisco OF
a thousand fold. Those under Indictment organ
1zed 20 prevent convictions and defeat Justice BIZ
the criminal manipulation Of Jurors and juries
a mfIlionth part only Of what has been done
in this direction viii ever be known or told
Suffice Il TO say that its proportions are well cal
culated 20 shake the confidence Of the stoiitest
heart In the ultimate triumph Of justice. -
Heney then proceeds to demonstrate
that Il has always been a practice
sanctioned by the codes for the courts
TO take judicial notice of the officers
Of the state. county and city. The po-
litical code provides that courts may
take judicial notice Of the executive Of
fieers Of the state and includes in the
list of such officers the mayors of
cities, and. IN fact, any Office created
by the charter OF a municipality. A
number OF decisions are cited, one in
which the California supreme court
took judicial notice Of one Of the dep
uty superintendents of streets of San
Francisco. The assistant district at
torney quotes the supreme court as