The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1908-05-03
MUST KEEP WITHIN CONSTITUTION

First-Why, it has been asked, could not the
court have taken into consideration the noto-
rlous Facts that Schmitz was mayor OF the city
and Ruef the political boss of the party in pos
session of the city government
The answer to this question is that judge
who regards the obligation of his oath is, to
quote the language of Governor Hughes Of New
York. marrow enough to keep within the consti-
tution.'
The legislature of California by a constitu-
ttonal law has enumerated the facts of which
courts may take judicial notice in the absence of
proof, and by necessary implication has excluded
all others. including the fact that any particular
lar city. Necessarily. facts which must be
proved where they are matters OF proof must be
alleged where they are matters OF allegation, as
in an Indictment
1t was for the express purpose of defining the
power OF courts as to the matters they would
consider without allegation or proof that this law
passed. and they bound to obey it. No
lawyer supposes that they can disregard 1t, and
no argument based upon such a superstition was
ever advanced in support of the Indictment by
any of the learned gentlemen representing the
people of the state.
Seeond-It has been frequently asked how the
decision that Schmitz was illegally convicted
be reconcled with the Judgment of the su-
preme court onsting him from the office of
mayor because of his conviction.
It is reconciled by the express provisions of
the state law and city charter concerning vacan-
is co Instant removed from his office.
AS 10 the tenure of the office appeal does
not operate stay Of proceedings, though the eff
feet may be. as in this case. to relieve the de-
PENDANT from other penal consequences of the
conviction.
A DEFECT OF SUBSTANCE
Third-An, anonymous critic demands an expla-
nation of the reason why in this the SUI
preme court chose to ignore the. following provi-
sion Of the penal code: No indictment or in
formation is sufficient, nor can the trial or other
proceeding thereon be affected, by reason of any
defect or imperfection in matter of form which
does not tend to the prejudice OF substantial
right of the defendant upon its merits, =
1t was ignored because of the learned
gentlemen representing the people of the state
from the attorney general down to the youngest
deputy in the district attorneys office, ever
thought of contending that the omission to al
lege in an indictment one of the essential ele-
ments of crime defined by the statute could
be considered defect or imperfection in matter
defect of substance, which the court could not
disregard.
A PREVIOUS DECISION
The San Francisco correspondent of the Bee
not long ago referred 10 the of Lee Look
in which this question much considered and
where conviction Of murder was reversed be-
cause the indictment failed to charge that Lee
Wing, the person alleged to have been killed.
a human being. OF course, it appeared
clearly enough from the evidence adduced at the
trial that Lee Wing the Of China
hut that proof could not mend the indct-
ment-
the supreme court has always felt itself bound
by the requirement of due process in criminal
cases, and Is an additional proof that the doc
trine of the Schmitz case was not invented for
the occasion The case is reported In the 18TH
volume of California Reports, page $50. E
l know that large class of well meaning peo-
pie regard this strict adherence to rule of pror
cedure foolish and harmful. because they ea1s
not appreciate the permanent value Of "A rule y IL
signed not only to to the defendant in a
criminal action the clearest. and amplest ststes
ment of the charge he is required TO defend, but
is OF great importance in promoting the dispatch
Of business. N 8