“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.”
Dean Wigmore’s criticism of the decisions in the Schmitz case, and of the articles written in defense of them was as follows: “I have read the letter of Mr. Heney, and the letter of the Chief Justice, and have re-read the opinion of the Court in People vs. Schmitz, 94 Pac. Rep. 419. The Chief Justice’s letter and Mr. Heney’s reply turn largely on the legal rule of judicial notice. The learned Chief Justice finds himself iron-bound by the rules of that subject. But the whole spirit of the rules is misconceived by him. Their essential and sole purpose is to relieve the party from proof,—that is, from proof of facts which are so notorious as not to need proof. When a party has not averred or evidenced a fact which later turns out, in the Supreme Court’s opinion, to be vital, the rule of judicial notice helps out the judge by permitting him to take the fact as true, where it is one so notorious that evidence of it would have been superfluous. Now these helping rules are not intended to bind him, but the contrary, i.e., to make him free to take the fact as proved where he knows the proof was not needed. Moreover, it follows that, since these rules cannot foresee every case that new times and new conditions will create, they can always receive new applications. The precedents of former judges, in noticing specific facts, do not restrict present judges from noticing new facts, provided only that the new fact is notorious to all the community. For example, the unquestioned election of William H. Taft as President of the United States is notorious; but no man named William H. Taft has ever been elected President, and no judicial precedent has noticed the fact. But no court would hesitate to notice this new notorious fact.
“If, then, a man named Schmitz was notoriously Mayor of San Francisco and a man named Ruef was notoriously its political boss, at the time in question, that is all that any court needs; and the doctrine of judicial notice gives it all the liberty it needs. It is conceivable that a trial judge might sometimes hesitate in applying this doctrine of notoriety, because the trial court might fear that the Supreme Court would not perceive the notoriety. But there never need be any such hesitation in a Supreme Court, if that court does see the notoriety.
“And this is just where the learned Chief Justice is to be criticised. He does not for a moment ask or answer the question, ‘Did we actually, as men and officers, believe these facts to be notoriously so?’ but refers to certain mechanical rules, external to his mind. What that Supreme Court should have done was to decide whether they under the circumstances did actually believe the facts about the status of Schmitz and Ruef to be notorious. In not so doing, they erred against the whole spirit and principle of judicial notice.
“And Mr. Heney’s demonstration that there is nothing in the codes to forbid them is complete; for, of course, the Code of Procedure, in telling them (Section 1875) that ‘the courts take judicial notice of the following facts,’ simply gave them a liberty of belief as to those specified facts, and did not take away their liberty as to other unspecified facts.
“But there is a deeper error than this in the learned Chief Justice’s letter, and in the court’s opinion. The letter says: ‘If by means of these allegations or otherwise it had been made to appear that the defendants had caused the applicants to believe that they could and would influence the Police Commissioners to reject their application regardless of its merits I have never doubted that the indictment would have been sufficient.’ He stakes his decision on this point. The point is that, in determining the fear caused by the threat, which constituted extortion, the belief of the restaurant-keeper as to Schmitz’s and Ruef’s power, and not their actual power, was the essential thing. If that is so, then of what consequence was it whether one or the other was Mayor or boss? And of what consequence was it whether those facts were averred or judicially noticed. None at all. The indictment alleged that the threats were made to use influence or power over the Commissioners, and that their purpose was to obtain money by means of (i.e., through fear of) such threats. Obviously, then, the actual power or influence was immaterial; and the belief of the restaurant-keeper, the only material fact, was a question of the evidence on the trial, and not of the legal sufficiency of the indictment. All the lucubrations about judicial notice were therefore beside the point.