The San Francisco call., 1908-08-18

for which there is a criminal liability.
13 1t is too we'll settled to admit of
serious discussion that acts which are,
in and OF themselves. lawful and which
may be done without the party COM
mltting them being called to account
therefor, become unlawful, and for
which party may be held to account
IN a criminal prosecution when done or
threatened for the accomplishment or
decisions hold that workingmen may
lawfully strike for the purpose of bet
tering their condition or securing their
rights; but a combination to cause a
strike for the purpose of injuring and
destroying the business and property
or another or depriving another of his
liberty or property without just cause
Is both unlawful and criminal
16. SAME-SAME-FREN R-cS-
TAURANT CASES.-In the case of Peo-
pie VS.. Schmitz March 9, 190S), the SUI
preme court say: I'm this case the in
dictment charges that the defendant
threatened the restaurant keepers that
II money was not paid him, he would
prevent them from obtaining or receiY-
ing retail liquor license and thereby
destroy or render Improbable their
restaurant business, of which the sale
of liquors at retail formed the remu-
nerative part. 1t is not stated how. the
defendant proposed TO do this, or how
1t was understood by the parties that
he would accomplish it. whether by fair
persuasion and lawful influence over
the commissioners or by duresS, men
ace, fraud or undue influence exercised
upon them. This is not a case where
it is sufficient to charge an offense in
the language of the statute defining 1t.
The court can not assume, in the alb
sence OF any aVerment to that effect,
that Schmitz was mayor of the city and,
as such, in position to exercise power
and undue influence over the members
of the board of police commissioners, or
that Ruef, his codefendant, was per-
son in practical control of the city gov
ernment because of his political actiy
ltV and Influence nfbPTWiSR ahlA 70
exert an undue influence over the
board, nor can it be inferred or pre-
sumed when it is not so charged, that
the defendant threatened to prevent
the issuance of the license by unlawful
means, and not solely by lawful and
innocent persuasion and argument. 1t
may well have been the case. that the
threat made did not express in words
any intent or purpose to use any of the
unlawful means referred to, and yet
that the purpose and ability to use such
means successfully were perfectly un-
derstood by the parties concerned, be-
cause of the circumstances known to
would not obviate the necessity of
pleading the facts necessary to make
the threat criminal"
II. 1t is thought that the above
paragraph violates we'll recognized
rules of statutory construction and we'll
settled rules of criminal pleading, and
that the case cannot be safely relied
upon an authority outside of Cali
fornia. 1t is a fragrant violation of the
spirit if not the letter of section of
the penal code and the old rule that it
is the duty of the court, where it is
possible, so to construe the statute as
to uphold the indictment and promote
justice instead of effecting miscar-
riage of justice. Several things occur
in connection with a consideration of
the foregoing quotation from the su-
preme court.
l. If an Indictment can lawfully be
upheld the court, as the judicial voice
of the state, is bound to so uphold it.
1t is not the province of the court to
seek some strained view of the law by
which an indictment of one accused of
crime can be quashed
H. The construction of the code pro-
vision on eXtOrtion is TO be made, not
| technically, but according to the fair
object and to promote justice.
III 1t is not charged, and the statute
does not require it to be charged, that
/ the threat was made by Schmitz acting
/ in his official capacity. The crime of
extortion under our statute is not the
old common law crime of extortion,
official acting in his official capacity.
/ Under our statute 1t is immaterial
whether Schmitz held any official posi-
/ ton or whether SchmitZ and Ruef had
any power or influence to carry out the
threat; the only thing to be considered
I Is: Did the accused eXtort money by
means of a threat? Official position or
power to carry out the threat is neither
material nor proper.
~. 1t is entirely immaterial by what
means Sehmitz and Ruef intended to
/ accomplish their threat to have the
! liquor license withheld-whether by
! fair persuasion of the board of super
visors or by menace, duress, fraud or
undue influence. The crime charged did
not consist in the dealings with the
/ board of supervisors, but in the threat
made to the French restaurateurs, by
means of which the fears of the latter
were aroused, and they were forced to
pay to SchmitZ and Ruef money to
which the latter were not entitled as a
means of preventing Schmitz and Ruef
/ from carrying out the threat. To re-
Qutre the indictment to contain an allie
| cation Of the means intended to be
used by Schmitz and Ruef to accom-
plish their unlawful purpose-the
means to be used with or to influence
/ or to menace or duress or fraud in
dealing with the board of supervisors
is indubitably bad law and bad plead
V. The declaration that the case lis
not one which is sufficient to charge an
ofense in the language of the statute
oennlhg II, MADE py the court, needs
| some reason and good authorities to
make 1t good law outside of this state,
and also in this state under the system
/ of criminal pleading provided for by
l the code-which should be the law by
which criminal pleading is to be meas
ured.
VI. 1t does not seem to have been
suggested to the court, and it does not
| seem to have occurred to the learned
| judges thereof, that the trial court was
required to take judicial notice of the
head of department of a coordinate de-
partment of the government of the city
and county of San Francisco and to
| take judicial notice of the fact that
| Sehmitz was at least de facto mayor
VII. The position and practical con-
/ troll of Ruef as the political boss" of
san Francisco "a position unrecognized
/ by law and his undue influence over
/ the board of supervisors (the exercise
/ OF which is contrary to public policy)
was merely matter of evidence and not
a matter to be pleaded. The only thing
| that is important is. Was the threat
made and did the defendants, Schmitz
and Ruef, through such threat extort
money and by means of the fear raised
thereby? If they did it is utterly i'm
material whether Schmitz was mayor
or Ruef was political boss" and had
or had not any influence with the board
of supervisors. The supreme court
seems to lose sight of the fact that the
crime of extortion in this state is not
confined to persons in office and exer-
cising official influence.
VIII. A threat to do a lawful act If
made for the purpose of putting a per-
son in fear and thereby securing money
or property which the person was not
in law entitled to have and receive
renders such person guilty of extortion
under the weight of decision and the
better doctrine, and taking the case In
= - 1s-k--