The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1865-09-19

hG6eds corpus, recently tried before him
in Monroe County, West Virginia.
CIBCUlT CoURT OF MONROE.
it.tl August 30, 1875.
james Wheeler, elias Wheeler and
Jackson Grimmet VS.. The State oj
West Virginin. On II writ of hdbens
corpus asking for their discharge from
custody, being held under n warrant
charging them with feIoniously steal
ing two horses and one mule from the
prosecutors. Defence, that the prom
erty belonged to the United States, and
was taken upon government account.
The Court is of opinion, from the
evidence, TINT Capt. l.. ID. Garten's
defendants We're members y were dis
banded by order of the governor, on
the Doth dry of June, 1865, nearly two
months before the alleged offence.
The Court is further of opinion that
whether disbauded or not, they had no
right, without special authority from
tho United States, to take and carry
away government property i'll the hands
of citizens.
The Court is further of opinion, that
such authority, If ever conferred in this
case, was revoked by General Order
of Col. John ii. Oley's, dated 18th OF
juno, 1865, of which Capt. Garten, it is
proved, had notice on the Goth of June,
1855. -
The Court is further of opinion, TINT
whether. the property taken, in this
cnse, belonged to the Government or
not, is II question which neither Gurten
nor his mon lad any right TO inquire
into or TO determine; and that even as
government property, qWOdH every one
but the Government or an authorized
agent of the Government, il was in law
the DrDDpFtV of tho hOIHar
The court is further of opinion that,
notwithstanding the cessation of nos
tiiities, Government property, when
properly demanded, is still subject to
military orders, and ought TO be deIiv-
cred up in obedience thereto; but until
proper demand thereof, that the posses
sion thereof however illegally ut least
as TO all strangers, must be treated as
the legal owner, or as bailee for the use
of the Government. And that in either
character, Trespass, Trover, or Indict
ment according to the animus of the
tnker) will be at tile instance of the
party from whom the goods are taken.
The court is further of opinion, that
naval or military (ns well as civil ofi-
cersl are only protected whilst acting
within the scope of their authority: and
that for any excess or abuse of such au-
thority, they nre liable ns trespnssers
d6 initiO.
1AiG SOulb II 4lEluGE Ol opinion, Ill1t
although secrecy is one of the most or
dinary characteristics of felonious in
tent in larceny, yet such intent may he
we'll inferred from the most open per-
petration of the offence, especially when
committed under what is called pre-
tence of law.
The Court is further of opinion. that
If the object of the taking in this case,
was to defrnud either the Government
or the party having possession Of,Ihe
property, it was felony. Otherwise 1t
was simply trespass, for which an in
dictment or action can be maintained.
The Court is further of opinion, that
MS the Justice who issued the wnrrnnt
in this cuse, had neither been commits
stoned by the Governor, nor duly elect
ed and qualified before he issued the
same, that the said warrant isstherefore
void, and that the petitioners should be
discharged from MI further proceedings
thereunderi but, it appearing from the
evidence, that there is probable cause to
believe that they are guilty of the Of
fence wherewith they are charged, the
Court is further of opinion, thai the pc
titiOners should he held in custody un-
til another and proper warrant for the
felony can be prepared and executed.