Los Angeles herald., 1908-01-10
SCHMITZ is
DISCHARGED,
BUT IN JAIL
APPELLATE COURT SUSTAlNS
DEMURRER
ERRORS FOUND IN TRIAL BEFORE
JUDGE DUNNE
Convicted Former Mayor Must Remain
in Jail sixty Days and Raise
s45o,ooo Ball Before
Given Liberty
CONTINUED from Page one.l

Continued from FAEe One'f
by the prosecution that had not even been
served upon the defendant or his connsei
be held conclusive upon the derendant'
and was this a question upon which ne
had no right to be heard?
.tTf was held by the trial court that the |
prosecution might have the sherin and
the coroner disqualified from taking
charge of the jury because tney Woulu i'o'
act impartia1ly.
s.It was in the next breath held that
the defendant had no right to show that
the elisor was disqualified by reason OF
bias. prejudice and enmity against the
defendant. II 1t was necessary IN order
10 subserve the ends of justice that the
political friends of the defendant snouio
not have charge OF the jury 1t was equal
~ necessary in order to protect the rigntS
Of the defendant. that the elisor shouiu
not be a personal enemy of the defendanL
Fair dealings and the rights OF the de-
PENDANT required that he should De nearu
on both propositions"
Decision Was Predicted
While the decision was not wholly
surprise, even to the prosecution. ana
had been freely predicted by Schmit5
friends for some time, Il did not fail to
cause something of a sensation, and was
the sole topic of conversation today
The decision will have the effect OF
inyalidating the other four indictments
charging Schmitz. as well as Huel, Win
extortion, and renders void the plea Oh
guilty made by Ruef. as the appellate
court held that no crime was committed
BY this reversal. it is feared, the prose-
cution has lost its hold upon Ruef, and II
was freely predicted tonight that the Tor
1ner political boss would now refuse all
overtures for immunity, wholly or In
part, to testify in the brtbery-grart cases
and that he would fight every indictment
against him.
But They're Still In
Although the court ordered Schmitz
discharged from custody on the extertion
indictments neither Schmitz nor Ruef can
take advantage of the reversal for sixty
days. and even then there is little like
lihood that either of them will be able |
TO get the enormous bail required for
their release.
There are still pending against Ruef
12G indictments charging bribery, on
which the total bail is I,170,000. and |
Schmitz would have to get bonds for
$450,000 on the 40 indictments that remain
against him.
The prosecution has twenty days in |
which to ask the appellate court for
rehearing of the appeal. and the court
has ten days in which to decide the mo- |
tion.
The appeal would then go to the SUI
preme court, where the same length of
time would be required before the de-
cision of today can go into effect.
Author Of Decision
The decision, as handed down, was
written by Justice Cooper, and reads in
part as follows
'srhe defendant was tried and convicted
of the crime of extortion. After the ver-
dict of the jury, on July s, he made
motion for a new trial which was denied, |
and thereupon the court pronounced 1udg-
lnent, sentencing him to the state prison
for five years. Thereafter, on the same
day. the defendant served upon the dis
trict attorney a notice OF appeal from the
judgment and from the order denying a
motion for new trial, and then immedi- |
ately filed the same with the clerk.
'The district attorney moved to dis
miss the appeal on the ground that the
notice was served before 1t was filed. and
also because the appeal was taken before
the judgment was entered. The court
dismisses both of these objections after
lengthy treatment of the matter"
Then the decision covers alleged errors
of the lower court during the trial.
Further Criticisms
In our opinion says Justice Cooper.
"the cross-examlnation was improper and
was not confined to the matters ON which
the defendant was examined in chief
This has reference to the answer
Schmitz gave in regard TO the payment
10 him of part Of the $1,000 contributed by
the restaurants. The attorneys for
Schmitz had at the trial questioned Ruef
AS to whether he was testifying in ex-
pectation of immunity. Judge Dunno re-
fused to permit any of these questions to
lie answered. holding that they were not
proper in cross-examination. The ap-
pellate court says:
'srhese rulings were erroneous and
highly prejudicial to the defendant"
The decision comments on Ruef having
pleaded guilty to the same charge and
then taking the witness stand against
one who had been his friend.
Heney Not Worried
Neither Langdon nor Heney seemed
cast down by the news of the decision.
The former said Schmitz and Ruef will
be prosecuted on other indictments that
are public offenses. Langdon and Heney
were In consultation this afternoon, and
probably will decide upon some new line
Of action.
The news of the decision spread rapidly
over the city, causing CONSERVATION In
some quarters and delight in others.
Only this morning Ruef came up for
sentence In Judge DUNES court but at
the request OF the prosecution the matter
was postponed for two weeks Now, the
indictment for extortion TO which Ruef
pleaded guilty having been declared In
valid, Ruef can withdraw his plea of
guilty and win be released from custody
whenever Schmitz is.
Heney Leaves for the North
Francis j. Heney. assistant district at
torney. who prosecuted Schmitz arrived
this morning from Washington and left
tonight for Portland, Ore. to take charge
of the Oregon land fraud cases there
Soon after his arrival he was apprised
Of the action of the appellate court and
a conference that lasted from 2 until
o'clock followed in the district attorneys
office between Heney. Rudolph Spreckels,
who financed the bribery-graft investiga-
tion and prosecution; Special Agent VIII
liam j. Burns and District Attorney
Langdon and several OF his assistants
At this conference the effect of the de-
cision of the appellate court upon the
prosecution and a course Of action were
discussed at great length.
When the conference broke up in order
to enable Heney to catch his train for
Oregon, the announcement was made that
no statement would be given out and that
the district attorneys office would adopt
policy of silence In regard to its future
plans.
Neither Langdon nor Heney would even
state whether or not an appeal would be
taken to the supreme court from the de-
cision rendered by the court of appeals
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