The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1869-10-11
THE BROOKS CASE.

In the Court OF Quarter Sessions this morning,
Otner scene was enacted showing the desperate
are to answer for the attempted assassination OF
Detective James j. Brooks still labor to effect their
rescue. Not single point that gave the least show
10r an advantage to be gained has been
untried, and this morning the last heavy
stroke was given, which, however the fate of
all its predecessors, was warded of by the COM
mendabe vigilance Of the authorities and fell TO the
ground harmless; and It is hoped that their counsel
may he too busiy employed for the last great strug
gle to permit them to disturb the interval between
tns ana the trial with more of their sharp but abor-
1--WE efforts to impede the course of Justice
At the instance of the District Attorney and by
tne erder OF Judge Ludlow, the prisoners Donohue,
sheriff to be arragned. William B. Mann and Lewis
y CASSIDY Esqs., their counsel learning this, at once
TOOK out writ OF habeas corpus, as they said for
the purpose of obtaining o reduction OF bail, and
prayed the Court to give hearing upon this writ
before the prisoners were forced to plead.
Ills Honor granted the writ, returnabe forthwith,
ana Inc Sherin at once made return that the prison.
ers having been surrendered into his custody upon q
Dench warrant from this court TO be held for their
appearance to answer the charge of assault and
battery with intent to kill James j. Brooks, were
now IN court, pursuant to order by his Honor for
the purpose Of being arraigned.
no thls return Mr.. Cassidy filed the following
traverse by Maria, saying that would de-
would be SUFFICIENT
Hugh Maria by way of traverse to the return filed
IN inns case says that he is aCitiZen of this county
that he has never had hearing before any Judge or
Justice, and has never seen heard his prosecutor
That he did not know OF the existence Of any bill OF
indictment % against him till this morning, and then
only by the return OF the Sheriff. That no copy of
the bill has been furnished or read to him.
That lie AYERS there is nothing in the return, and
could not legally be- that will prevent the Judge
hearing the case from nquiring into the circum-
stances of this, required by the act of 1885, that
ne may be discharged from imprisonment or ad-
And for further answer he says that It will be i'm
possible Tor the Judge to determine according to law
the amount of bail how far the relator ia con-
nected with any transaction rendering him liable to
punlsement, to hear the circumstances connected
D n Tnn m hn
sheritl's return.
Mr. Hagert suggested that this was no traverse Of
the RETURN for there was no denial in it OF any fact
alleged by the return. SO far as the hearing was
concerned, he would grant that in the matter of
entitled to this preliminary hearing. But
| these men were fugitives from Justice;
in the proper way by remaining in the jurisdiction
ana appearing before the committing magistrate; ;
3ut Iney nad waved thelr rlgnt by fght and an M
dctment had to be found in their absence in order
to obtain requisitton to bring them back. An al-
| dayit OF their tight mad been presented to his
| bench warrant issued And the Indictment found
precluded hearing upon this writ.
that he thought he was entitled to have
| seen that affidavit that he might have had an OPP
portunity OF traycTsing it, but lie had mad no notice
We're III the city on Thursday night that he was sent
| for as counsel, and though he had to wait at the
| station-house until midnight. he admitted by
the Mayor to consult with them. He considered the
for the act of Assembly was explicit that the Court,
in order TO determine the amount OF bail in any case
should inquire into the circumstances OF it, and this
| was the only method of carrying out this require
| ment that he could think of. He only desired that
| the case Of these men should pursue the ordinary
usual course OF business in court OF law and that
distinction should be made between it and other
cases, or that they should be treated more severely
| than other defendants.
| Mr.. Mann here arose and said that this course on
the part of the District Attorney was exactly what
he had seen in many cases in this Court. The Com
mOnweath wanted to get rid of a hearing upon the
| writ TO themselves the labor and incOnveni-
ence of producing their testimony. When they dis
trusted their case, wished to Keep it secret from
| the other side, the prosecuting officers always
| But the defendant had right to be heard right
| OF the most vital importance, to have
hearing before the court in order to ascertain the
circumstances OF the that might require large
| or small amount of bail, or perhaps TO demand dis
CHARGE a right that the Constitution guaranteed to
every citizen. This court had over and again heard
that when citizen, arrested and imprisoned in this
manner, came in praying hearing, the Common
Weaths officer should not rise in his place, and pro-
ducing bill of Indictment, of the finding OF which
the defendant had no knowledge say, '"lhere, that
| settles it ; you cannot be heard"
The practice of the court for twenty-five years had
| been that when a defendant had been given no
hearing before the bill was found he was entitled to
| a hearing before the court III order to have the
amount of his bail determined. True the court had
often said that where the citizen had full and
| ample opportunity to be heard and had waived that
opportunity, the Indictment would be sufficient to
prevent hearing and he would have to give bail.
But where there had been no hearing, and ndict-
| ment was found holding the defendant for trial
| during the term in which the bill found it was
hearing would be allowed. This was the
case here, and certainly the indictment could not be
allowed to operate as an obstruction to the prison.
ers right to be heard. They had never seen their
prosecutor, had never been confronted by their ac-
cusers they in the dark and were here praying
| for that light which the act of Assembly said every
citizen was entitled to- The District Attorney held
the bill Of Indictment necessary to the obtaining OF
| a requisition: that might have been true enough,
but I had served its purpose, and could not be
pleaded IN precusion OF the right OF the citizen to
heanng; II mad been used for the purpose OF the
saw wRGber RS e % h Tor Se dG the
ana In what amount OF bail he should be held, and
to tins 1t was necessary to go into hearing The
Constitution said excessive bail should not be de-
manded, and where such amount had been required
as seemed excessive and in violation of this proyi-
slon 1t seemed but the simplest kind of justice to
grant hearing, in order that the propriety of the
sum named should be inquired into If the Court
should grant a hearing, there was no doubt that
Peter DOnahoue, one OF the prisoners would be dis
charged altngether, for against him there was not
| the slightest evidence
In deciding this controversy, Judge Ludlow said -
| This hdbedS corpus law, in order to be properly
understood, must be viewed in all its lights, and
while agree with the prisoners counsel in the main
of what they have said vet in some things they have
| uttered must differ from them. The defendant,
| when fugitive from justice as in the affidavit in
this case these prisoners are alleged to be, may be
| ton, and called at once to trial; and
| when so called to trial he may
impede it 10y interpOsing writ Stripped of all its
legal and rhetorical verbiage, this is the simple pro-
position advanced by the prisoners counsel. Within
my knowledge where men have been brought to the
bar TO plead, the Supreme Court has refused to in
| terfere by granting writ OF habeas corpus. Then
| how can this proposition hold good, If in such case
| as this even the Supreme Court can not issue the
| writ? The power of the highest Court in the Com
| mOnwealth TO grant this writ is by statute Then,
without violation TO the object and spirit of the law
which are found by reference to this statutary lim-
taon, the prisoners upon being brought to trial. for
their arragnmen s the initiative step IN their trial.
| can not inteIpOse this writ and defeat the trial
| on Monday last the District Attorney made atli-
dayit before me that parties charged with crime had