The San Francisco call., 1908-08-18
KERR ARRAIGNS
SUPREME COURT
ON BTORTION
Declares Highest State Tribunal
Formulated Bad Law in
SchmitZ Case
Says Poor Pleading Was Adv0-
Gated and Doctrine of
Judicial Notice Ignored
Calls "The Ides of March" Not
Good Law and Cites Wealth
of Authorities

of Authorities
That the supreme court of Califor-
MIA formulated bad law, advocated bad
pleading and ignored the doctrine of
judicial notice in deciding the Schmitz
extortion case, is the contention of
James M. Kerr, editor of the Cyclic
pedic Penal Code of California, just
published.
In support of his contention that
the law of extortion formulated in
what he calls "the ides of March" is
not good law, Kerr cites wealth of
authorities; he also gives his reasons
for disregarding certain authorities re-
lied upon by the supreme court.
The notes supplied by Kerr for that
section of the penal code relating to ex-
tortion overturn the reasoning of the
appellate and supreme courts of this
state in their decisions in the Schmitz
case. His book has been eagerly awaited
by the lawyers of this state, and when
the distribution of the new volume be-
gins today one of the first copies will go
to Henry Ach, attorney for Ruef, who
ordered a copy in advance.
MERITS OF SCHMITZ CASE
Omitting innumerable citations and
the discussion of certain cases on all
fours with the Schmitz case, the follow
ing are the notes in the new lawbook
which have reference to the merits and
sufficiency of the Schmitz indictment:
$40. WHAT THREATS MAY CON-
sTITUTE ExTORTION-Fear such as
will constitute extortion may be in
duced by a, threat, either:
1. To do an unlawful injury TO the
person or property of the individual
or member of his family; or,
2. To accuse him, or any relative of
his, or member of his family, of any
crime; or,
them any deformity or disgrace; or,
4. To expose any secret affecting him
or them.
History: Enacted February IA, 1872.
5. INDICTMENT-EXT BY
THREAT-WHAT MUST BE CHARGED
I'm the case of People VS.. Schmitz
(Cal March 8, 1909 the supreme court
v
in that it did not show that the spe-
cific injury TO the property of the res
taurant keepers threatened by the de-
fendant was an unlawful injury 1t
is very clear that, TO constitute the
crime of extortion committed by means
of any threat to injure property of the
ened, as was, in effect, said by the
learned district court of appeal, must
be, in itself, unlawful, irrespective of
whether or not the purpose with which
he &c n fS 70 alf fofv
to which the person threatening is not
entitled" This is the law in California
since the 'ides of March," but is not
so considered elsewhere in the country
9. Legal act done for AN unlawful
purpOse.-The English house of lords,
the highest law tribunal in England,
has announced the true doctrine to be,
that an otherwise lawful act may be-
come unlawful when done with mali
cious purpose, and that the element of
malice or malevolent purpose changes
the legal nature of certain classes of
Cas-. 4s5. See p. 512.
Z. In the Leathem case certain
trades union men became angry with
the plaintiff, a wholesale butcher, and
in order to injure his business went to
one of his large customers, one Munce-
who, however, was not under contract
to buy-and threatened to call a strike
on Munce If he did not withdraw his
custom from the plaintiff (Leathem)
To avoid the strike Munce withdrew
his custom. The plaintiff sued the
trades union for tort. The house of
lords decided for the plaintiff, holding
that while the defendants had legal
right to strike or threaten to strike,
and a legal right to agree or "conspire''
together to strike or threaten to strike.
which would not be true conspiracy
yet when they with malicious purpose
threatened to strike on Munce to in
jure Leatham's business the new ele-
ment of illegal purpose changed the
lawful act into an unlawful act. The
fact that many trades unions were
banded together in the above case in
law: if there had been but one trades
union involved and making the threat
against Munce for the purpose of iniur-
ing. the business Of Leathem, the de-
cisfon would have been the same The
principle involved in that case is direct
ly applicable and should control, in the
Schmitz casei and If applied, the result
reached would have been the opposite
of that announced.
8. The decision in the Leathem case
is in harmony with the leading cases in
this country.
o. "Unlawful"--Meaning of, as used
in paragraph / of above section of the
penal code, qualities the word injury
alone. If the injury. threatening to
threatened has an absolute legal right
to carry out. he can not be held to
have threatened ito do an unlawful in
jury" to the property, even though his
obtain from the person threatened
money to which he is not entitled
People VS., schmitz, Cal, March 8. 1908.
This is not in accordance with the doc
trine IN well considered cases.
10. Any malicious injury to the per-
son or property Of another is absolutely
unlawful, for which the constitution
of the state and the statutes give re-
dress, civil or criminal, or both; and
outside of the state Of California the
doctrine announced in the above para
graph is not law. The reasoning by
which the court reaches the concIusfon
set forth is not satisfactory, and II is
submitted that the case of People VS.
Hughes, cited by the court, does NOT
support their decision.
IL The word unlawful" as used in
the penal code,, simply means without
lawful excuse, without legal justifica-
ton.
u. Any words or acts which are CAL
culated and intended to cause an ordi-
nary person to fear an injury to his
person, business or property are
=