The San Francisco call., 1908-03-10

injury TO property because of the un-
lawful means proposed to be used
that is. the deceit and undue influence
The question whether malice alone
should be considered in law as suffi-
cfent TO make an injury resulting from
8 lawful act the subject of an action
for redress, or whether the use of un-
lawful means to induce the lawful
act is essential. is a question of public
pelicy. Both are morally wrong, and
the reason for the distinction is not 10
be found In the difference in the moral
qualities of the respective elements. 1t
is founded upon the conviction that to
hold the former sufficient would. in the
administration of the rule. cause injus-
tice TO be done more frequently than
Justice. and that it would be unwise 10
hold man answerable in an action
solely because of the state of his mind,
emotions and feelings In many of the
cases where an injury from the unlaw-
ful act of third person has been de-
clared unlawful there is no discussion
of this phase of the subject. and fire.
quently the elements of menace and
undue influence are confused But in
nearly ak of them, indeed in most of
those exceptional cases in which malice
alone has been held to make the in
jury unlawful, it will be found that
the defendant employed some one of
the unlawful means above mentioned
in procuring the act to be done. or
cases on the subject see is Am. &
Eng. Ency. of Law. SS; 19 Ibid, 62;
1s Ibid, l113; 1 Cyc, 651. 663. e69; l
Cent. Dig. Col. 11lo See Harvard
Law Review, PIP. ] TO IA.
In this case the indictment charges
that the defendant threatened the res
taurant keepers thar IL money was not
paid him he would prevent them from
obtaining or receiving a retail liquor
license, and thereby destroy or render
Improbable their restaurant business.
Of which the sale of liquors at retail
formed the remunerative part. 1t is
not stated how the defendant proposed
to do this or how it was understood by
the parties that he would accomplish
1t. whether by fair persuasion and law
ful influence over the commissioners or
by duress. menace, fraud or undue in
1uence exercised upon them. This is
not a case where it is sufficient to
charge an ofrense in the language of
the statute defining it. The court can
not assume, in the absence of any aver
ment 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
board Of police commissioners. or that
fluel, his cOQeIenO2nl. WIS q ptfSOH III
practical control of the city govern
ment. because OF his political activity
and influence, or otherwise able to ex-
ert an undue influence over the board.
nor can it be inferred or presumed.
when il is not so charged, that the de-
fendant threatened to prevent the is
suance OF the license by unlawful
means, and not solely by lawful and in
nocent persuasion and argument. 1t
may well have been the case that the
threat made did not express in words
any intent or purpose 10 use any of the
unlawful means referred TO. and yet
that the purpose and ability TO use
such means successfully were perfectly
understood by the parties concerned
because OF the circumstances known to
them. This absence OF express agoWal
would not obviate the necessity Of
pleading the fact> ,.eces s;:ry to make
the threat criminal.
1t is an elementary principle OF crim-
inal law that the Indictment must show
that crime mas been committed In
no case can the Indictment be aided. by
imagination or presumption. The pre-
sumptions are all ia favor of inno-
cence, and If The facts stated may or
may not constitute crime, the pre-
sumption is that no crime is charged. .
(PeopIe VS.. Tefrill IL, Cal. 1000
, two New York cases strongly relied on
by the respondent 1People rs. Hughes,
supra, and People VS. Barondoss, 81
y. E.. 24e) involved any question OF. the
sufficiency of an Indictment and that
there is nothing in the opinions in said
cases that is in conflict with the views
we have expressed,
The attorneys for the respondent
base their application for a hearing in
this court solely upon the alleged err
rors of the district court in refusing
TO dismiss the appeal and in holding
the. Indictment to be insufficient, and
expressly limit such application to
those TWO points.
They introduce their application with
the statement that they are convinced
that upon full discussion Of the case
''it will be found and decided by this
court that levyfng blackmail upon
licensed businesses by the mayor and
the political boss of a metropolitan
community is crime under the law of
California and should not go nnwhipped
of justice" This is a gross misstate-
ment Of the case and OF the question to
be decided. as presented by the indict-
ment. We again emphasize the fact
that the Indictment does not aver that
Schmitz was mayor, or that Ruef was
political boss, or that either of them
had any power or influence or control
over the police commissioners, or that
they threatened to use any such power.
influence or control in preventing the
issuance OF license.
The question whether or not the fact,
if it be a fact. that the restaurant keep
ers were unfit persons who should not
have been licensed would be a good de-
fense to a good Indictment for extor-
tion. is also a question foreign to the
discussion OF the sufficiency of the in
dictment. Any intimations in the opin-
ion OF the district court of appeal that
such unfftness would Justify the extor-
ton OF money by a threat of the use of
unlawful means to procure the refusal
OF a license. must be considered as
obiter dicta, and We do not wish to be
understood as approving them.
The application for a hearing and de-
I termination OF this appeal by this
court. after decision and judgment by
the district court of appeal of the first
district, is denied.
Filed March 9. 1908.
+. l. Caughey. Clerk,
By Erb, Deputy.
ScHMITZ' ATTORNEYS TALK