The Billings gazette. [volume] (Billings, Mont.) 1896-1919, 1908-03-10
BOSS AND FORMER MAYOR Or
SAN FRANCISCO WIN I'M ! t.ioH-
EST COURT.
Will GET BAIL
Defects in Complaint Are Cited 10
Show Reason for Decision which
Opens Doors Of Jail for schmitz ana
Ruef-Judges Are Unanimous in
the Opinion.

the Opinion.
San Francisco, March 8. The state
supreme court today refused q re-
hearing in the case Of former Mayor
Schmitz, convicted Of extortion from
French restaurant proprietors and
sentenced to five years in the peniten-
tiary. The op1nlon was unanimous.
This sustains the decision Of the
district court Of appeals. which de-
creed that the Judgment and order of
the lower court be reversed, sustained
the demurrer to the indictment and
ordered the discharge Of the defend
ant on the ground that under the Law
no offense had been committed. Abra-
ham Ruef, who was jointly indicted
with Schmitz, pleaded guilty and his
sentence is now pending. Today's de-
cision OF the supreme court also ap.
plies to him. It Is believed that
schmitz will Immediately apply tor re-
lease from the county Jail and Ruef
may do likewise. The prosecution pro-
poses to at once bring to trial some sof
the many other charges pending
against them.
@ Decision Sustained.
The court sustained the appellate
court In its decision that the indict-
Ment upon which Schmitz was con-
victed, was defective in that It did not
aver that schmitz was mayor. that
Duef was a political boss practically
in control Of the city, that as such was
in a position to exercise power and
undue influence over the police COM
missioners and that It did not show
that Schmitz resorted to unlawful
means in threatening to have liquor
licenses withheld.
"The contention of the respondent
that the appeal was prematurely tax
en-" says the court, has no merit.
The court is unanimous in the opinion
that the district court OF appeals was
correct in its conclusion that the IN
dictment was insufficient In that it did
not show that the injury to the prop
lerty threatened BY the defendant was
an unlawful injury.
Complaint Defective.
This is not case where 1t Is suf-
fscient to charge an offense in the Ian
guage Of the statute defining it. The
court cannot assume in the absence
Of an averment to that effect, that
schmitz was mayor Of the city. and
that as such he was in q position to-
exercise power and undue influence
over the members Of the police com
mission. or that Ruef was . person In
practical control Of the city govern
ment because Of his political activity
and influence over the board, nor can
It be inferred or presumed when It II
not 50 charged, that the defendant
threatened to prevent the issuance OF
the license by unlawful means and
not solely By lawful and innocent per-
suasion and argument
This decision practically nullihes
Ruefs plea Of guilty to the same
charge, invalidates the remaining four
extortion indictments against the for
mer mayor and Ruef and viii enable
schmitz to gain his liberty on bail
after eight months confinement n.
the county jail. Counsel for schmitx
announced tonight that stops would
be taken tomorrow for the former
mayors release.
"The decision demonstrates. said
ex-Mayor Schmitz, "that the highest
court In the state believes what I
have always claimed. that | was re-
moved from once and railrosded to
prison"