The San Francisco call., 1910-06-29
5 H HADOW Of
SCHMITZ FALLS
over TRIAL
Supreme Court Takes Ford, Abb
bOtt and MuIIaIIy Petitions
Under Amusement
Attorney Declares That Defend
ants Pay SII,2OO Annually
for Surety Bonds
Bench Intimates That Man
damus Would Probably Be
Correct Procedure

II was the shadow of their codefend-
mt. Eugene Z. schmitz, that loomed
most ominously in the state supreme
sourt yesterday over the affairs of I'll
7ey I. Ford. William NJ. Abbott and
rhornwelI Mutually Of the United Rail-
foads who were seeking release on
rrits OF habeas corpus from the bur
len Of indictments brought during the
.arIy days Of the graft prosecution.
The three defendants petitioned for
'rits OF habeas corpus on the ground
hat. they were deprived of their con-
1itdtional right to a speedy trial They
Asd surrendered themselves into the
'pstody Of the sheriff for the purpose
Il basing their petitions for release
ipoR. state Of actual custody. In his
argument on why the writs should not
ssue District Attorney Charles NJ.
s.lckert cited the decision of the same
curt when It denied the application
Of former Mayor Schmitz for a writ of
:habess corpus, when the point was
aiken that Schmitz' custody was self
invoked, as in the present instance.
Members Of the court. speaking from
The bench. were not quite ready to ap-
ply the Schmitz decision to the case
on hearing yesterday Chief Justice
Beatty declared that the Schmitz case
revoIved around different point.
though Justice AngelIotu declared that
the Schmitz case was nearly parallel
TO the pending action.
The chief justice admitted a change
in the law and rules of the court dur
sng recent. years. Since the decision
OF the Schmitz case said he. this
court has renounced the old doctrine
that a judge was immune from man
-danlus proceedings We are open TO
hear argument that a writ Of manda-
mus may apply in this case with a
writ Of habeas corpus"
The proceedings in the case of the
nited Railroads defendants accused
of offering and giving a bribe took
nearly al day. Garret W McEnerney.
stanley Moore and A. A. Moore ap-
reared for the defendants, and par
.ticu2erized on the case of William NJ.
Abbott. although the petitions in each
p instance are the same.
All members Of the bench except
Justice Melvin. were present and the
CHIEF justice asked the attorneys if il
would be agreeable to them for Mel
win TO sit in judgment on the case.
That suggestion. which was fsvorably
received. carried the idea that the six
justices in attendance yesterday might
be evenly divided on the merits of the
application for the writ
When the case was first called McEn-
erney, made the opening argument His
foremost contention was that the petit
toner had been deprived OF speedy
trial Apart from the common law and
Constitutional right 10 q speedy trial,
AfeEnerney srgped that there was a
statutory right ander the laws of Cali
fornis, and he declared that it was
v-ithin the province OF the higher court
70 pass on. the question OF a lower
court s.delay.
Continuing. he declared that it did
not make any difference when a man
applied for release by habeas corpus
whether he was in actual custody or
was out on bail and in the custody of
his bondsmen.
In the afternoon AicEnerney gave fig
paid s2s,e5O premiums on their surety
bonds; that there was $500 due and
unpaid. making a total OF s36,250. and
that the annual premium of s11,2es.
Justice Angellotti said thai he con-
sidered that a writ of mandamus would
be the remedy for the petitioner.
In his answering argument Fickert
commended that mandamus proceedings
and not q petition for a writ Of hsbeas
corpus vas the proper remedy, and held
that in this instance the petitioners had
surrendered themselves merely to base
th1ir petition for a writ on actual Gus
tody.
Stanley Moore lis concluding ar
g1ment, urge r5Hgiy for the right
of p speedy tres FOR persons accused
of crime.
Chief Justice Beatty wanted TO know
what stand the trial Judge Judge Law
lorj took on the petition and the oues-
irons raised BY the petitioners. Assist
ant. District Attorney Lane said that
Judge LawIor had intimated that the
court records should speak for them
selves.
The case was taken under advise
ment