Note 353 — Chapter XXII · Higher Courts Free Schmitz and Ruef.

James M. Kerr is author of Kerr’s California Cyclopedic Codes. These works are accepted as standards throughout the country.

“It is thought,” says Kerr in California Cyclopedic Codes for 1908, “that ... the [Schmitz] case cannot be safely relied upon as an authority outside of California. It is a flagrant violation of the spirit if not the letter of Section 4 ante, and the old rule that it is the duty of the court, where it is possible, so to construe the statute as to uphold the indictment and promote justice, instead of effecting a miscarriage of justice. Several things occur in connection with a consideration of the foregoing quotation from the Supreme Court.

“1. If an indictment can lawfully be upheld, the court, as the judicial voice of the State, is bound so to uphold it. It is not the province of the court to seek some strained view of the law by which an indictment of one accused of crime can be quashed.

“2. The construction of the code provision on extortion is to be made, not technically, but according to the fair import of its terms, with a view to its object and to promote justice.

“3. It is not charged, and the statute does not require it to be charged, that the threat was made by Schmitz, acting in his official capacity. The crime of extortion, under our statute, is not the old common-law crime of extortion, which could be committed only by an official acting in his official capacity. Under our statute it is immaterial whether Schmitz held any official position, or whether Schmitz and Ruef had any power or influence to carry out the threat; the only thing to be considered is, Did the accused extort money by means of a threat? Official position or power to carry out the threat is neither material nor proper.

“4. It is entirely immaterial by what means Schmitz and Ruef intended to accomplish their threat to have the liquor license withheld; whether by fair persuasion of the Board of Supervisors, or by menace, duress, fraud, or undue influence. The crime charged did not consist in the dealings with the Board of Supervisors, but in the threat made to the French restaurateurs, by means of which the fears of the latter were aroused, and were forced to pay to Schmitz and Ruef money to which the latter were not entitled, as a means of preventing Schmitz and Ruef from carrying out the threat. To require the indictment to contain an allegation of the means intended to be used by Schmitz and Ruef to accomplish their unlawful purpose—the means to be used with, or to influence, or to menace, or duress, or fraud in dealing with, the Board of Supervisors—is indubitably bad law and bad pleading.

“5. The declaration that the case ‘is not one which is sufficient to charge an offense in the language of the statute defining it,’ made by the court, needs some reason and good authorities to make it good law outside of this State, and also in this State under the system of criminal pleading provided for by the code—which should be the law by which criminal pleading is to be measured.

“6. It does not seem to have been suggested to the court, and it does not seem to have occurred to the learned judges thereof, that the trial court was required to take judicial notice of the head of department of a co-ordinate department of the government of the City and County of San Francisco, and to take judicial notice of the fact that Schmitz was at least de facto Mayor. See Kerr’s Cyc. Code Civ. Proc., Sec. 1875, Subd. 5.

“7. The position and practical control of Ruef, as the ‘political boss’ of San Francisco (a position unrecognized by law), and his undue influence over the Board of Supervisors (the exercise of which is contrary to public policy), was merely matter of evidence, and not a matter to be pleaded; the only thing that is important is, Was the threat made? and did the defendants, Schmitz and Ruef, through such threat, extort money, and by means of the fear raised thereby? If they did, it is utterly immaterial whether Schmitz was Mayor, or Ruef was a ‘political boss,’ and had or had not any influence with the Board of Supervisors. The Supreme Court seems to lose sight of the fact that the crime of extortion in this State is not confined to persons in office, and exercising official influence.

“8. A threat to do a lawful act, if made for the purpose of putting a person in fear, and thereby securing money or property which the person was not in law entitled to have and receive, renders such person guilty of extortion, under the weight of decision and the better doctrine; and taking the case in that view, the indictment is amply sufficient, and should have been upheld by the court. The case of Boyson vs. Thorn, 98 Cal., 578; 33 Pac. Rep., 492, has no application, and its citation by the court only tends to befog the issue.”