The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1869-07-01

THAT ~ what contend for here. You might az
ns sss. "so sss have q As sesa
where man was sent to the stats Prison for his nau
raj fe and say that ne was convicted Of an oience
q always included in he isassr one ana this princ
pie has been held BY all the courts. further con,
error. Il there ID any defect in Tie indictment lss
nim take out writ o. error, ana let the supreme
prisoner til the question Is decided. on trial he
would, & ne. desired g have had the benefit
this, and ne having pleaded guilty, the judg-
ment Of the court must proceed. There Is not
TINS proceeding. SUCH proceeding has never
before been attempted In this city IN any single
instance. And defy counsel on the other SIDE
70 point out case where prisoner found guilty
q an indlctable otYence by 9 court Of competent
Jurisdiction has ever been discharged on habeas
gentleman can point to such a case let him do 1t;
but such case certainly fell under my 0bser
for this principle Of law and justice here and say
be TINS aSSnS y 70 prevail there sSs not
prisoner, will get his deserts. To suppress crime,
rampant as it is in this city. the law must be vindi
sons Or at the courts OF oyer and Terminer three
things are needed to fulfil the intent OF the law;
shall be certain and third, that not only shall It be
certain, but that from the moment the sentence ls
pronounced the criminal shall know that the whole
Is your Honor discharge this man venture to say
the seat OF justice win be assaed In
s1bversion of alljustce ana all law. But / know
your Honor viii not do it, will not attempt a thing
never before attempted by court Of justice because
no court Of justice has had the power to do It, And
should It be done In this then brand It here in
open court as violation of every principle OF statute
against proceedings in this suit. 1t 10 power the
Court here has no right to exercise. You cannot
n
the way asked for here.
The Court-suppose the wrong man was tried,
convicted and sentenced, could he not be brought
before o superior court under habeas corpusf
District Attorney Garvin-suppose iorger turns
trial He must take care q bis safety trial. and
ne can appeal on writ OF error. II you do this
from al the sV Of 81 the city you You ~
every day; You will BY granting this motion, set
ciousiy nay, fatally felt throughout the whole COM
mu n Yon VIII empty the prisons Of the State
with worse results than ever before.
Mr.. BARTLETT's REPLY.
MI: Bartlett said;-fhe prisoner is imprisoned for
q different offence from that Of which he was con-
victed; for felony OF which ne has not been con-
victed, and for which he has not been trIed held
to answer upon any preseDtment or Indictment Of
Grand Jury, and consequently bis Imprisonment Is
illegal Gnd unconstitutional, and the sentence 10 i'm
prsonment under which he Is held utterly void from
STATE Pr1son hs nv se N me
authority Of sentence Of the Court Of General SEES
slons IN tnis CITY, December CO. 1863 to four years
gree The only Sencs q which Ie has 1 been lc con-
forged checks. Uttering ana publishing forged
checks, as true, and with intent TO defraud, Is an
oence but Il is not forgery any more than 1t is
fabricate. blacksmith FORCES horse Shoes aud you
might as Wen say that horse FORCES them because
merely uttering forged instrument constitutes for
gerry Lord Coke says, ITO forge Is unexpectedly
and forgeth what fashion or shape he viii" Is Just
1897 Forgery at common law is defined as the
fraudulent making or alteration Of writlng to tue
csion by the statute law Of this State vi" Il i s
sSa VI Se %
porting the same, to tnjure or deraud any foreign
government or the subjects thereof; and, second,
with intent to deiraad certain instruments or
writings3 r. s., part 4, sections 20, S3.)
lishing Is quite different thing from making and
tSte iofgery 70 utter means SUBSTANTIALLY s yt SS oer
Il Bishops Or. Law, section 22l.} Uttering
ana publishing within the meaning Of the
The distinction between }orgery-or maKing-and
clear from the intrinsic difference in the meaning of
words themselves. II there were no authorities on
necessary 70 constitute the two offences respectively
seems to be too apparent to leave room for discus
WE s mo-
treat nttering as not constituting forgery e
Bishops Or. L., sections 602, 5o3,, but we have
mat, too, BY the supreme Court Of tins state In
The People VS.. Rynders "a Wendell, 425l Chief Jus
for te ns
check and also for publishing 1t "a true knowing 1t
to be false. These ere different offences.
n mia mil tod and ~
the other" And formerly In England uttering coun-
terfei money was punishable by one years. ilnprison
punishable by death, without benefiIof clergy. IL
and 10 Geo. G. rs, and other Old English satutes
fhs prisoner was convicted on an Indictment for
uferng ana punllsning certain gold checks He
pleaded guilty. OF course, the plea of guilty applied
to the charge contained ia the indictment, and did
for any other offence. lie was sentenced for forgery
Ia the third degree. There Is no presentment or n
oictms 5 against MN for tnat Sence The constu
held to answer for an infamous crime unless on pre-
sentiment or Indictment OF grand jury. tArt J. sec.
crime as including every offence punishable with
imprisonment in State prison. q II. s., p. 1927
able with Imprisonment in the State Prison ibid,
p. $751; We thus find the prisoner confined In State
prison for an Infamous CRIME, for which he has not
been held TO answer by presentment or indictment
OF grand Jury, and in violation OF one of the plain
est provisions of the constitution Is there any law
fni mode Of releasing hims Il would be an anomaly
IN the law II q man could be imprisoned in manifest
defiance Of the plain letter Of the constitution and
yet no way exist by which he could be released
Such condition OF things might we'll give rise to
general feeling OF uneasiness and alarm. The
people would naturally inquire to wha: end they
support the costly machinery OF State government
II ID every department 1t is imp0tent 10 release
prisoner Illegally held. That such q power does
exist cannot be disputed any show or reason or
authority. The next question is whether habeas
corpus Is the legal and appropriate remedy Habeas
corpus Is the proper remedy. in this State, Tor
illegal imprisonment, except where the prisoner
detained under color OF authority Of the United
States, or by virtue OF the final Judgment decree
OF court of competent civil criminal jurisdiction
by virtue OF any execution issued upon judg
ent or decree ID Is certain that the prisoner is not
detained under authority Of the United States Is he
imprisoned by virtue Of the tpal Judgment of
q court Of competent jurisdictionf IL Is
not denied that the Court Of General Sessions
Il competent to try charge Of forgery the third
cours jurisdiction or Of forgery in the third
degree against the prsonerf No principle better