Los Angeles herald., 1908-01-10
SCHMITZ is
DISCHARGED,
BUT IN JAIL
APPELLATE COURT SUSTAINS
DEMURRER
ERRoRs FOUND IN TRIAL BEFORE
JUDGE DUNNE
Convicted Former Mayor Must Remain
In jail sixty Days and Raise
$45o,ooo Ball Before
Given Liberty
I;y Associated Press.

Isy Associated Press
SAN FRANCISCO, Jan. 9-"rhe Juds-
ment and order are reversed and the tr'al
court is directed to sustain the demurrer
TO the indictment and discharge the ue-
fendant as to such indictment
This was the decision handed down TO-
dav by the district court of appeals re-
versing the judgment of the trial court
in the case of former Mayor Eugene ~
scbnitz sentenced to five years in san
Quentin on the charge of eXtoruon Daseo'
upou the alleged "holding up OF the
French restaurants in the matter OF
Iouor licenses and setting aside the IN
dictment on which his conviction was hau'
The trial was made notable by the ap
pearance of Abraham Ruet-the ponticai
dictator who controlled the munclpal au,
n,inistration and who practically placed
Sehmitz i'm office-as u witness against
the mayor, testifying that he had pald 10
him as his share $500 of the $4,000 received
by Ruef from the French restaurants III
order that Schmitz would permit the
board of police commissioners 10 ISSUE
LIQUOR licenses to them.
Ruef had previously to this dramatl-
cally pleaded guilty TO the same charge.
at the same time making the enlgmatlcal
statement that he was innocent.
Reason for Decision
On the ground that the indictment dld
not show that a public offense was COM
mitted because it did not allege any
threat to inture property, the court mold
ing that a liquor license was not property,
but mere permission; that a threat 10
prevent the obtaining of liquor license
by one who had no authority In the prem
ises did not constitute a threat against
property and because of numerous errors
In the ruling of the trial judge-Superlor
Judge Frank II. Dunne-the appellate
court held that the indictment was In
valid and the conviction null and void.
In effect the court held that Schmitz
was not given a fair and impartial trial
Among the errors of the trial court as
being cause for reversal the appellate
court. in it's deeision-containing about
12OOO words-enumerates the following;
Trial Court Errors
sHThat the court under the defendants
objection allowed the prosecution t. per-
emptorily challenge two Jurors after they
had been accepted and sworn without any
proper cause being shown or even stated.
aThat the court permitted the filing of
affidavits disqualifying the sheriff and
coroner as officers to take charge of the
Jury and appointed an elisor for that pur-
pose before the affdavits were hrst
served upon the defendant, and refused
to allow the defense to file counter al
fidavits showing that the elisor named by
the court was prejudiced, biased and
personal enemy of the defendant
''The admission by the court of the
hearsay evidence of five witnesses.
THAT the court admitted the testi-
mony of Ruef in rebuttal when it did not
constitute evidence in rebuttal, and up
held the prosecution in improper cross
examination of the defendant, and that
the court erred in overruling the defend
ants demurrer to the indictment"
Cites Error of Judge
The court held that the action OF the
trial judge in overrullng the objection OF
the defense and permitting the district at
torney to peremptorily challenge Juror
Harris, after he had been examined
passed and sworn, without cause being
shown or even stated, was an error.
Section 1868 of the penal code is cited, in
which it is said a change must be taken
when the juror appears, and before ne is
sworn to try the cause; but giving the
court authority to permit challenge atter
the juror is sworn and before the jury Is
complete, when cause is shown.
The decision! says the court could not
under this section, permit challenge eX-
cept "for cause and that juror after
being sworn, could not, except for Valld
reason, at the caprice of one of the parties
be discharged.
The decision continues: 1.-THE juror be-
came part of the tribunal for the pur-
pose of determining the guilt or innocence
of the defendant That tribunal was
changed without the consent of the de-
fendant and in the interest of his adve--
sary."
Discharge of Bray
The discharge of Juror Bray after be-
ing sworn, on the ground that 1t was re-
norted that he was a fifth cousin of the
defendant but of which relationship the
iuror had no knowledge himself, was also
held to be an error on the part of the trial
court.
Quoting Judge Dunno, who said, Il
think any relationship, no matter how re-
mote ought to keep a person Off the
i,ry" the decision says: ut was not for
the court to set up its judgment against
the statute as to the qualification OF
juror"
Commenting upon Judge Dunnes ruling
in permitting the filing of affidavites dis
oualifying the sheriff and the coroner as
officers to take charge of the jury, before
the affidavits were served upon the de-
PENDANT and refusing to allow the defense
~ file counter affidavits to disqualifying
William j. Biggy. the elisor, on the
ground of bias prejudice, enmity and be-
inc in the employ of the prosecution, the
appellate court says
the district attorney showed prima facie
evidence. was ii no concern or business
of the defendant as to whether or not the
Officers of the law should be set aside and
a third party placed In charge Of the
jury? Must the ex parte affidavits onered
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