“I repeat,” said the Chief Justice in his Bee article, “that the only question presented for decision was the question of statutory construction here stated, for it was never seriously contended before the Supreme Court by the Attorney General, or by the District Attorney of San Francisco, or by any of his assistants or deputies, or by the learned counsel, whose names are signed to the petition for a rehearing, that the indictment did allege a threat to do an unlawful injury of the character indicated. What it did allege on this point, and all that it alleged, was that one E. E. Schmitz (without showing that he was Mayor of the city, or that he had any official or other influence over the Board of Police Commissioners greater than, or different from, that of the humblest private citizen), and one Abraham Ruef (without showing that he had any such power or influence) had told certain keepers of a restaurant that they could, and had threatened that they would, prevent them from obtaining a renewal of their license to sell liquors, etc. The indictment, in other words, had no more force in legal contemplation than if it had been directed against Jack Stiles and Richard Noakes, for though the facts that Schmitz was Mayor and Ruef the political boss of the city may have been as notorious in San Francisco as the fire or earthquake, no lawyer would contend for a moment that they were facts of which a court could take judicial notice in passing upon the sufficiency of the indictment.”
Heney’s reply to Chief Justice Beatty was published in The Sacramento Bee. Section 961 of the California Penal Code expressly provides that no fact of which a court may take judicial notice, need be alleged in any indictment. The Codes enumerate certain matters of which the courts are required to take judicial notice. Among the matters are “State offices and their incumbents.” The Political Code defines who are “State officers,” and among them are included “Mayors of Cities.” Heney, in his reply, held Chief Justice Beatty and the court to be wrong, even on the face of the statute. No lawyer in the State attempted to answer Heney’s reply, although many of them would have been glad to have earned recognition from the Supreme Court by doing so.
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.