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sSs?b:£?& PRICE: BY ( AHHll'n J 40 CENTS irVfßKKinn xMvIV-aTj. per month *v/ xcj THREE KILLED, 18 INJURED, IN WRECK NEAR SAN JOSE SCHMITZ TO STAY IN JAIL TWO MONTHS; $450,000 BAIL NEEDED TO RELEASE HIM SCHMITZ IS DISCHARGED, BUT IN JAIL APPELLATE COURT SUSTAINS j DEMURRER _______ ERRORS FOUND IN TRIAL BEFORE JUDGE DUNNE . Convicted Former Mayor Must Remain In Jail Sixty Days and Raise $450,000 Ball Before Given Liberty "sajTi'bANCISCO. Jan. 9.-"The judg- SAN FRANCISCO. .lan. 9.— Tne judg ment and order are reversed and the trial court is directed to sustain the demurrer to the Indictment and discharge .tho de fendant as to such Indictment." Tills was the decision handed down to day by the district court of appeals re ■ versing the judgment of the trial court in the cane of former Mayor Eugene K. Schmltz, sentenced to five years In San Quentln on the charge of extortion based upon the alleged "holding up" of the French restaurants In the matter of liquor licenses and setting aside the in dictment on which his conviction was had. The trial was made notable by the ap pearance of Abraham Ruef-tho political dictator who controlled the municipal ad ministration and who practically placed Bobmtts In office-us a witness against the mayor, testifying that be had paid to him as his share $25(10 of the $5000 received by Kuef from the French restaurants in order that Bchmlt* would permit the board of police commissioners- to Issue liquor licenses to them. < Ruef had previously to this dramati cally pleaded guilty to the same charge, at the same time making the enigmatical statement that he was Innocent. Reason for Decision ':-, On the ground that the Indictment did not show that a public, offense was com mitted, because it did not allege any threat to Injure property, the court hold- Ing that a liquor license was not property, but me*e , permission; that a : threat to 0 prevent the obtaining of a liquor Hcenßa 1 by one who had no authority In the prem ises did not constitute a threat against property and because of numerous errors ' in the ruling of the trial Judge—Superior judge Frank ii. Dunne—the appellate, court held' that the Indictment was in valid and the conviction null and void. ' In effect the court held" that Schmitz was not given a fair and Impartial trial. Among the errors of the trial court as being cause for reversal, the appellate court, in Its decision— containing about 12,000 enumerates the, following: •' Trial Court Errors "That the court under the defendant's objection allowed the prosecution to per emptorily challenge two jurors after they had been accepted and sworn without any ' proper cause being shown or even stated. "That the court permitted the tiling of affidavits disqualifying the sheriff and coroner as officers to take charge of the ■ Jury and appointed an elisor for that pur pose before the affidavits were first served upon the defendant, and refused I to allow tne defense to file counter af fidavits showing that the elisor named by the court was prejudiced, biased and a personal enemy of the defendant. "The admission by the court of the hearsay evidence of live witnesses "That ■ the court admitted the testi mony of Ruef in rebuttal when It did not constitute evidence In rebuttal, and up ' held the prosecution in improper cross examination of the defendant, and that the court erred in overruling the defend ant's demurrer to the Indictment." Cites Error of Judge . '' The court held that the action of the trial Judge in overruling the objection of ' the defense and permitting the district at torney to peremptorily challenge Juror Harris, ", after he had been examined, . passed and sworn, without cause being shown or even stated, was an error. Section 1068 of the penal code Is cited, in which it Is said a change must be taken when the Juror appears, and before he is 1 sworn to try the.cause; but giving the court authority to permit a challenge after the juror Is sworn and before the jury Is complete, when cause Is shown. The decision! says the court, could not under this section, permit a challenge ex cept "for cause," and that a juror after being sworn, could not, except for it valid reason, at the caprice of one of the parties be discharged. ; Tho decision continues: "The juror be came a part of the tribunal for the pur pose of determining the guilt or Innocence of the " defendant. That tribunal was I changed without the consent of the de ■ fendant and in the interest of his adver ■ sary." " ' : , ■(, ;■/-■■ Discharge of Bray v The discharge, of Juror Bray after be ing sworn, on the ground that it was re ported that ha was a fifth cousin of the defendant," but of which relationship the juror had no knowledge himself, was also held to be an error on the part of the trial court. - ' . '*■ Quoting' Judge Dunne, who said. '1 think any relationship, no matter how re mote, ; ought to : keep a person off >. the Jury," the decision says: "It was not for ' the court to set up its judgment against , the statute as to the' qualification of a Commenting upon Judge Dunne's ruling in permitting the filing of affidavltes dis ' Qualifying the sheriff and the coroner as •officers to take charge of the jury, before the affidavits were' served upon the de • fendant and refusing to allow the defense to file counter affidavits to 'disqualifying. ' William J. Blggy. the ■ elisor. «on tho ground of bias, prejudice, enmity and be ing In, the employ of the prosecution, the appellate court says: ■; _ '\ '-'.*'■" ' -."Conceding that the affidavits ■ filed by the district attorney: showed prima facie evidence," was it no concern ior business 1 of the defendant as to whether or not th« | offtters of the law should be set aside and '-" a•„ third party placed Sln 5 charge <of ; | the • Jury? Must the ex parti- affidavits offered rCoadnueil urn P««e Two.) 1 LOS ANGELES HERALD MOTHER IS BLAMED BY CORONER'S JURY FOR DEATH OF CHILD Sacramento Woman Failed to CaH in Doctor and Kalamazoo Officers Charge Her with Man. slaughter ■ — m—— ■ I' ■ Hy Associated Vrevt. KALAMAZOO, Mich., Jan. The coro ner's jury at Flalnview, which has been Inquiring Into the death there of Walter Xee.li y. aged 2H years, sou of Mr. and Mrs. David N. Neeley of Sacramento, Cal., brought In a verdict this afternoon finding that the child died of pleuro-pneu monlu, and declaring the mother guilty of gross neglect for falling to secure the services of a physician, or to call In medi cal attendance. The child was treated by two members of a sect of mental healers. No responsibility, It Is declared, attaches to the father, who was in California dur ing th< child's sickness and death. The verdict declares that Mrs. Wllmok of Grand Rapids and Mrs. Mary L. Blood nf Kalamaioo, who treated the child, are guilty of grow negligence In not doing anything to Irani the nature of the dis ease or calling In a physician. A charge of manslaughter has already he,n preferred aKaiiiHt Mrs. Xeeloy, who Is under 5">000 ball. Bbc was placed under arrest on tho charge Tuesday, CLEARINGS APPROACH OLD FIGURES REPORT FOR WEEK SHOWS BIG INCREASE Banks of San Francisco Cleared to the , Amount of $32,646,157 for Six Days Ending at Noon Yesterday By Associated Press. ' SAN FRANCISCO, Jan. 'Sun Fran cisco's bank clearings are slowly ap proaching normal .figures again, as Is shown, by those for the week ending at noon Thursday, for which the clearings amounted to $32,646,167. ' For the. corresponding week of 1907 the clearings totaled $46,856,676, and for the corresponding week of 11)06 $44,825,584, a decrease of 28 and 27 per cent respectively. It must be borne In mind in this connection that up to the time of the Ore Oakland banks cleared ' through the San Francisco clearing house. These figures were gathered by tha California promotion committee, which has also reported the figures for the other clearing house cities In Califor nia for the same period. The Oak land figures totaled $1,626,883, a de crease of 63 per cent In comparison with the total for the corresponding week of last year, $4,634,011. The L,os Angeles banks cleared to the amount of $8,905,880, as compared with $13,251,000 for the previous year, a falling off of 40 per cent. San Jose shows a total of $418,392, a decrease of 5 per cent in comparison with a year ago, which were $440,633. Sacramento banks reported clearings of $908,990 and Stockton $430,636, both cities having but recently organized clearing houses and no comparison with the previous year therefore being obtainable. ILLINOIS CENTRAL FILES ANSWER TO FISH'S CHARGES By Associated Press. CHICAGO, Jan. 9.—With the implied purpose of controverting the charges made by Stuyvesant Fish in his suit to enjoin the voting of 281,231 shares of stock of the Illinois Central railroad held by the Union Pacific railroad and by ths Railway Security company, an answer by the Illinois Central Railroad company was filed in the superior court In this city today. Accompanying it were affidavits from Mr. Harriman, Walter Luttgen, John Jacob Astor, Alex G. Uackstaff, Cor nelius Vanderbilt. John W. Auchlncloss, Robert W. Goelet and Charles A. Pea body. The documents admit the exist ence of hostility toward Mr. Fish, but it is declared this hostility Is due to the actions of Mr. Fish in beginning the liti gation. Qoelet and Peabody each deny that Mr. 'larriman dominates and Influences him. Harriman avers that he does not domi nate or Influence Goelet or Peabody or any of the directors of the Illinois Cen tral. Each of the affiants denies having voted prejudicially to the interests of the Illi nois Central, and declares the only deal- Ings had between that company and the Union Pacific railroad within the last two years have been agreements for con necting their tracks and the use of the station of the Union Pacific at Omaha, both of which were recommended, it is pointed out, by Mr. Fish, and for the In terchange of .traffic and Interchange of rates, in which, it is said, no change has been made or proposed within a year. HELD FOR INSANITY, SAN FRANCISCO MAN DIES OF STARVATION Ny A«»oclat«d Preat. SAN FRANCISCO, Jan. 9.— G. Aguri tann, formerly residing at 665 Jesse street, who was taken to the central emergency hospital on January 7 and was being held pending an examination on a charge of insanity, died today from starvation. After his arrest Agurltann constantly rafqiad to out and reateted every attempt to force him to take nourlHlunent. FRIDAY MORNING. JANUARY 10, 1908. Must Languish Still "In Durance Vile" EUGENE E. SCHMITZ, FORMER MAYOR OF SAN FRANCISCO, IN WHOSE CASE THE DECISION WAS ftEVERSEP BY THE APPELLATE COURT RELEGATES AMBITION OF STAFF CORPS LINE RANK ONLY TO COMMAND WAR VESSELS New Measure Will Work Many Changes in Naval Personnel —May Also Strengthen Efficiency of System By Associated Press. WASHINGTON, Jan. 9.—A bill, whose passuge will work many Important changes in the personnel of the navy and greatly Increase Its efficiency, was in troduced by Senator Hale, chairman of the senate committee on naval affairs. It proposes a settlement of the vexa tious question as to whether the mem bers of the staff corps shall have rank with the line officers, puts an end to the creation of bureaus by the secretary of the navy and gives a substantial raise in pay to every commissioned officer and enlisted man of tho navy and the marine corps. There is an important section relating to tho appointment of midshipmen to tho line and staff corps and also a provision calling for the retirement of officers of certain age. Tho first section of the bill deals with the bureau question by granting author ity to bureaus now in existence to con tinue to transact the business assigned them and requiring that all reports and recommendation* shall bo made directly to the secretary of the navy. There is then added the provision that "no permanent board of any kind shall be hereafter appointed by the navy de partment or continued in operation unless exp-essly provided for by law," but from time to time the secretary of the navy ■lay convene boards for temporary serv ice connected with the pending business of the department." Line vs. Staff Rank That part of, the bill which relates to the assignment of line rank to officers of the various divisions of the staff corps contends that they shall in no instance, assume command of any vessel. It is as follows: "The officers In the various staff corps of the navy shall hereafter have actual rank and title as now established for the corps staff of the navy. "Such officers of the ataft corps of the navy shall at all times have the title and designation of th«lr rank; and new commissions in acc<frdance therewith •ihall be forthwith Issued to them; pro- ,!';■ (luunuued a* B»K« twoi < Summary of the News FORECAST 'For Los Ange,leo .and vicinity: Fair Friday; light northeast winds. , Maximum temperature yesterday, 76 degrees; minimum, 41 degrees. LOCAL .. iUJd>V'i'': ' ■ • • Trial of Rolla Kobe, charged with com plicity In the murder of Patrolman Lyons, begun in . the superior court. Wife sup ports husband during hearing. • ■ . 'Mayor-refuses to sign Dromgold ordin ance and comes out strong forVjwtnglng signs. '■• >i ..■■....•-■ • ■ • • ■ ' ... • ■ . Prosecutor ' Fleming sounds keynote iof warning at meeting of realty board anil promises real estate sharks shall be pros ecuted in future. . ■. ."■■-,',' ' . Mayor asks suggestions in regard to the best manner of ertertalning members of Evans' fleet.;/.-;'.;.; ; , ;'• > : \,--' . Price of ice sent skyward, by firms. Managers claim higher cost of oil caused advance. ■', ■-.■■■■. .'.-. . '■:-■'.'"..•-■-' ; Clerk at Fifth; street store victim of mysterious assault. ," . "■ ■■ ■', ■ ;~^' Residents of California plan to present cruiser with beautiful silver service. Daniel Meskil, convicted of killing Pa trolman Lyons, makes arrangements to appeal case. ; > ■ - •pu V; - COAST ■ ■ ■?-;■.•■":•" Appellate court . sustains demurrer of Schmitz' attorney. Convicted mayor must remain In Jail for two months longer and then deposit $160,000 bail. -.' .-.•.',. '. Three killed and eighteen Injured when Sunset express leaves track near San Jose. :■ • . ■"■ '■ Important bill • Introduced jby Senator Hale which will work many changes In naval personnel. •• - ' , Special train b/aring strike j breakers arrives at Goldfleld from Salt Lake. , ' Carpenters at Qoldfleid now demand scale, of $7. EASTERN ■■-' j New tunnel subway at New York proves satisfactory. . Early crowds find new sys tem of great advantage.. .': Captain ,of university football ■ team commits suicide; leaves strange note. . • Attorney for son of Mrs. Eddy, denies client will sue Christian Science. leader to retermine his sanity. •- ■ ' • Men j charged with slaying secret ser vice agent near Durango, Colo., Indicted by grand Jury. .. ■■:■■-■' ■■ •. ; Harriman, ; railroad magnate, - soon to face, suit brought in Salt Lake.' ; ■ • FOREIGN -■■' '■' <X\\ ' . ■ Low '■ lying > districts . flooded j by , waters of ■ Baltic ' sea ,■ and : many ' casualties - to fishing craft" are i reported. l.. •;;4:^r.% ,;-. White Star steamship line reduces rates and Cunard will follow Huit. ■. , Italians and Abysslnians clash 'at Lugh on west coast of Africa. ''Many killed on both sides. '"■■'-. '*•■>'*'•!'■] ':'■ ;-'-'!''f, TAFT THINKS UNIONS ARE BENEFICIAL DECLARES LABOR ORGANIZA. TIONS ENTIRELY LAWFUL Virtues and Abuses of Restraining Order Are Fully Reviewed in Let. ter Written by Him to Fed. eration of Labor By Associated Press. MARTIN'S FERRY, O. Jan. 9.—Tha views of William H. Taft. secretary ot war, in regard to tho use and abuse of Injunctions, are stated in a letter In re ply to questions propounded by Llewellyn Lewis, secretary of tht Ohio Federation of Labor, Just given out here today. Secretary Taft prefaces his statement with a declaration that he believes it to be "highly beneficial and entirely lawful for laborers to unite in their common interests." Proceeding directly to the answer of the questions propounded, he says: "First, you ask me what I would think of the enactment of a law defining the cases In which a temporary restraining order may issue and defining In specific terms the language in which such order may be fromed. "I s»e no objection to the enactment ot a statute which shall deline the lights.ot laborers in their controversies with then 1 former employers. As this statute would fix the full limits of their action, it would necessarily fm'nlsh a definite rule for de termining the cases in which injunctions might issue, as well as their character ana scope. "It should be said that this statute, however, if enacted by congress, could relate only to the District of Columbia or some place wituln the exclusive jurisdic tion of the federal government, or to those employers or employes whose rela tions are within congressional definition and control. "Generally, the law governing the re lations between employer and employe la a state law, and only enforced In the federal courts when the jurisdiction arises by reason of the diverse citizen ship of the parties. "Speaking generally, however, both as to federal and. state legislation, 1 see no objection to a statute which shall, so far as possible, define the rights of both par ties In such controversies more accurate ly. Indeed, the more exactly tho law of , (Continued on pace twa) CIV/ I i;< f"'M[>lir'W> DAILY, 3ci BCNDAY. Sa Oli>l*L(lJ l_A/l UIiO.OIV TRAINS, 5 TENTS TRAIN WRECK NEAR SAN JOSE RESULTS IN DEATH OF THREE SUNSET EXPBE>S LEAVES THE KAILS Six Coaches Dash from Track While Running Be hind Time at High Rate of Speed—Dead and Maimed Taken to Gilror —Tramp Among Victims —Known Injured Eighteen THE DEAD MRS. A. P. BOYD AND SON, Portland, Ore. AN UNKNOWN TRAMP. PARTIAL LIST OF INJURED William Ferguson, Lawrence, Mass., badly crushed, may die. A. Saunders, Chicago, badly crushed. Howard Muller, San Francisco, badly hurt. Mrs. M. John, San Francisco, feet crushed. W. Oakley, Union City, N. V., slightly hurt. A. R. Belleme, New Orleans, fractured arm. Mrs. Wickert, South Dakota, scalp wound. Mrs. L; Howard, San Francisco, fractured foot. D. J. Scully, Napa, Cal., ankle and hip fractured. Clarence Savage, Pasadena, scalp wounds. Mr. and Mrs. Serber, Hamliton, 0., arms and wrists cut. By Auoclated 1-resj. SAN JOSE, Jan. 9.—South-bound train No. 10, the Sunset ex* press of the Southern Pacific company, was wrecked early this even ing at Rucker, twenty-five miles below here, and Mrs. A. P. Boyd and her little son of Portland, Ore., were killed outright. An unknown tramp, stealing a ride on the brake beams, was also killed. Eighteen injured have been taken to a Gilroy hospital, where their injuries were treated. The cause of the wreck is not known at this time. Six coaches behind the engine left the track. One was rolled into the county road and in this were the most seriously hurt. The train was one hour late leaving San Jose and was running at high speed in an effort to make up lost time. A wrecking train, carrying physicians and nurses, was made up here and dispatched to the scene, as was a passenger train to which thb uninjured passengers of the wrecked train were transferred. The train is made up in San Francisco and its terminal is New Orleans. WAS WIFE OF PASTOR PORTLAND. Ore,. Jan. 9.—Mrs. Boyd and her son, who were killed in the Southern Pacific wreck near San Jose, were the wife and son of Rev. A. P. Boyd, who until recently was the pastor of the Sellwood Methodist Episcopal church in this city. Mrs. Boyd left here Tuesday night and joined her husband at Roseburg, Ore., whither he had preceded her a few days. Mr. Boyd is in ill health and for that reason secured a transfer from the Se'llwood church to the First Methodist Episcopal church of Atlanta, Ga. The family was enroute to that city when the acci dent occurred Mrs. Boyd's family home is in Detroit. GREAT TWIN BUTTES MINES NEAR TUCSON TO REOPEN AT ONCE By A (undated Prom TUCSON, Jan. 9.-Edward T. Davis, a Philadelphia millionaire, president of the Twin Buttes Mining and Smelting com pany, In an interview with your corre spondent tonight, said: "The directors have decided to resume operations at once, under the superlntend ency of Capt. William McDermott." This company Is largely composed of Milwaukee and Philadelphia capitalists. It owns and operates its own railroad from the mines to Tucson. ♦<-• ASK FOR RECEIVER FOR C. G. W. RAILWAY Company Files Answer Consenting to Insolvency and Bonds Are Fixed. Similar Action Taken in Omaha 8/ A»sor<at«l Pr«». CHICAGO, Jan. 9.—Ancillary bank ruptcy proceedings against the Chi cago Great Western Railway company were instituted this moon in the United States circuit court in this city. The stockholders and creditors of the railroad, whose names are on the petition, are the same ias those at tached to the original petition at St. Paul which resulted in the appoint ment of President ? Stlckney and Charles F. Smith as receivers. The bonds of the receivers were fixed at 15000 each. An answer in behalf of the company consenting to the appointment of a re ceiver was also filed. Petition* in Omaha f!y Asaoclttoi Preu. OMAHA. Jan. 9.—Petitions for a re ceiver for the property of the Chicago Great Western railway in Nebraska were filed In the United States court of Omaha this morning, but no action has been taken by the court. Justice Sent tc Prison By Associated Pre»». UKIAH, Cal.. Jan. 9.—Justice of the Peace Armstrong of Hopland has been sentenced by Judge White to one year in ban Quentin for embezzling funds of the Court of Foresters In that oily, of which lie was treasurer. H« pleaded BUiUy to taking over MOO. CENTS SOMALILAND FORCES IN CONFLICT Heavy Losses Suffered by Both Sides 1 in Siege of Lughßed Sea Squadron Ordered to Protect Towns Bit Associated Press. ROME, Jan. 9—News has been received here of serious troubles in Italian Somali - land on the east coast of Africa,. which! have resulted in pitched battles between' 1 the Italian forces there and the Abyssin- Inns. A dispatch reports a raid by 2000 Abys slnians near Lugh, the farthermost Ital lan station In the Interior, the Abyssin ian* robbing,' killing and imprisoning many of the merchants. . , ' Lugh is garrisoned by only about I.' natives under command of Capt. Bongio-: vunnl, and the attacking party laid siege to the town. | ~-. In a number of engagements that fol lowed both sides, according: to the re-J ports, suffered heavy losses. Squadron ,to Rescue ; . The Italian government has ordered the squadron now in the Red sea to proceed to the coast of Somali lurid in order to I protect the towns along the coast,' as the entire territory Is garrisoned by not mora i than 2000 natives under;the; command ofJ Italian officers. '• At tho same time the government has telegraphed sto the Italian legation ;at s Adls Abebba, the < capital of s Abyssinia ! ! Instructing the I Italian minister *to | pre- * sent a protest to ; King, Menelik j against ] the violation of the status quo. .-'>";»<-'■' Italy holds Lugh through an'arrange ment concluded with t the sultan lof I that I territory -in 1896, . whlob, * however, was $■ never ratified by King Menelik, who con sider. '. • Lugh as a ; portion iof i his j own | territory. *. Lugh i Is '. nearly j thirty J days' 1 march from the coast, v ; Lugh Is Destroyed ■ Later, in \ the day dispatches % indicate the trouble is of a more serious nature' than at first supposed. It is learned on good authority that | I.ugh was | besieged f by ' the Abyssinlans; and i destroyed | after a desperate and ; unequal ' fight \ and . that its defenders were killed. »,'•'>; jiaaßW It is believed here that the Italian "gov-"' eminent is | concealing fa] sever reverse I In order; to prepare the public for graver? news.'>«:>A i'" ( ,v'w v»"" .'■~::!«;..-*.'*5 i'The importance of the present situation lies In : the establishment: of , the i fac- jas J to whether the king of Abyssinia ordered, the attack.