The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1869-08-31
SUPERIOR C0UnT-SPsclAL Team.
Habeas COrpus-.sIcCleiianA After Jadge Dow.
linz.


ling.
Before Judge McCunn.
John Cochran who on the 24th OF July last was
tried, convicted and sentenced to the rententlary
for four months In the Court OF Special Sessions,
was broughs before Judge McCunn yesterday morn
ing on writ Of habeas corpus.
Mr.. James b. McClelan urged the prisoners re-
lease by virtue of The writ on the ground that he
was tried, convicted ana sentenced by Justice Dow
ling alone, instead OF there having been two Justices
presio;ng on tue bench at the time, required by
law. He then read several anldayits setting forth
the charge Of which the prisoner had been con-
vlcted, namely, per5onatng police offtcer and OBJ
tanning money from woman OF easy virtue, and
showing that Justice Kelly was not on the bench
with Justice Downing during the tIial, &C.
lease OF the prisoner Oh the ground first tnat upon
the petition having been presented to Judge McCunn
in chambers IL Was the Judges duty TO inquire
whether the party was committed Or detained by
Judgment Of court Of competent Jurisdiction. lie
next cOntenied that the special Sessions, under q
law passed In 1867 was u cOnrt constitutonaly
formed, AMI as such had the right TO try cases OF
Term that two justices must hold the Special Ses-
sons, anu that one Of them could not be absent
unless he was sick or out OF the city, In which event
the court could be held by either. Apart from
this, ce tiOrar and not habeas corpus was the
proper remedy in this case The celebrated case OF
point OF what he contended. That case was brought
up to the Supreme Court and Branch was baied out.
which decided That the prisoner having once entered
the execution OF hls sentence had no legal right to
be bailed out. Mr. Blunt read the aidavts ofJustces
Downing and Kelly and Mr.. r. Johnston, clerk OF the
Special Sessions setting forth that both the former
Participated IN and were present at the trial. con-
vcton and sentence Of Cochran on the day In ques-
ton.
Judge McCunn took the papers and reserved his
decision.
Another Habeas Corpus Case.
Before Judge Jones'
before Judge Jones on another writ Of habeas
corpus.
Mr.. Alanson Nash appeared as his counsel, and
from his statement Of the case the following facts
transpred-The prisoner. who is only sixteen years
DID, was indicted for robbery in the rst degree. He
pleaded guilty to petit larceny from the person and
was sentenced q year ago in the Court Of General
Sessions to the Pentenliary for three years. Mr..
Nash claimed tina. that court had no Jurisdiction to
send the prisoner to the Penitentiary at ALL while it
might have sent him TO the state Prison for three
years II II saw Ct. There is no power, except one
under the statute TO send him to the Pententary
instead OF tue state Prison, and that exception gave
the Judge the discretion to send persons between
the ages OF sixteen and twenty-one 10 the former
place instead OF to the latter Therefore, Mr.. Nash
commended this boy being under sixteen ut the time
Of his conviction aud sentence the statute did not
apply, and he should he released.
District Attorney Garvin made some extended re-
marks on the case quoting copiously from the
books TO show that Judge Jones had power to In
terfere In the matter. The principal point taken by
the District Attorney was that RICE having been
sentenced by court OF competent jurisdiction the
habeas corpus did not lie. because the law says that
where man is confined by the final judgment OF
court OF competent iudrisdiction he cannot prose-
cute or sue out q writ OF haOeas corpus.
Mr.. Nash-The court was not q court OF competent
jurisdiction, and had no right TO send him there
Judge Jones-Let the prisoner be remanded, TO be
produced before me on Tuesday, September 7, at
twelve O'Clock noon, when viii dispose OF the mat
ter,
DecisiOns.
BY Judge Jones.
Mary Stevenson Us. James StecenSon-Judgment
Of divorce granted.
Leland Bdlch, ct al Us. j. II. Misunderstanding
dismissed.
ChIytes r. Bclcino rs. Le,eis Syrester, ei. ai~-Mo
ton granted.
WiiitadB 2. EcDOrldyd, et. al gs. O. c. WdlIeY.-De-
fault opened and referred TO Y. Price.
T00los HGlaDt rs. Anton Kfoashdr.-Mouon
granted.
Cta'9es r. Gilmore Us. Ed,card BidcH ei. dl.In-
Junction modified.