Public ledger. [volume] (Memphis, Tenn.) 1865-1893, 1870-12-03
HABEAs CORPUS CASE.
The Witnesses In the Cosgroye CASE
Discharged by Judge Ray.
opinion OF the Court.

DlScnhfBeu W JuuBc nay
Opinion OF the Court.
At the present term of the Criminal
Court the following order was made and
entered Of record ,, ~ ,ssl
Criminal Court Of SHELBY County; ]
On Friday, November IL, 1870, the
following order appeared Of record, to
wit: Comes the Attorney General, oil
the part Of the State, and therenpor
moves the Court to fix the bonds for the
appearance Of the following named par
ties. all. oflwhom are witnesses on behalf
of the State in the case Of the State. q
Tennessee vs.. John Cosgrove, on an in
dictment for murder, to-wit; Pat
OLary, James Lane, VIM. Boyle, b
Duffey, James Crowley, John Dorsey,
Ed. Pendergrast, John Lee, d. II. Cal
non. P. Patton Timothy Carey, Thomas
Roach, John H. Lee, v. Madden, Mar
tin Garrity, Edward Brawdy, Jennie
Williams and Emma Williams; and it
appearing to the satisfaction Of the
Court, from the statement Of the Attor-
ney General and the papers on file IN
this Court in the said case Of the State
of Tennessee VS.. John Cesgroye, that the
testimony of each of the above witnesses
is material in said cause, it is ordered
that the bond for the appearance of said
parties be fixed at the sum of five hun
bred dollars each, and in default OF Civ
ing said bond, it is ordered that they be
tcommitted to the county Jail OF Shelby
County until said bond is given, or until
they are otherwise discharged.
The parties being unable to give the
bond required by said order were com
mitted to jail; and thereupon made ap!
plication to be discharged upon a writ Of
habeas corpus, which was referred to
Judge Ray by Judge Flippin, the latter
being too much engaged to hear it.
OPINION. bN 1ia8
Under the statutes of Tennessee the
committing magistrate has the power,
when the testimony Is material, and he
has good cause to believe that witness
for the prosecution will not appear to
testify, he may require such witness to
enter into a bond, with secntity, for his
appearance, or, in default, may commit
him to Jail, the statutes no where giving
the like power to the higher courts.
1t is insisted by the State that, mas
asmuch as the magistrates have the stat
utory power to require bond and Sc
curity of the witness, therefore courts
of record, by implication and for
superior reasons, should have and ex-
ercise the same power However plaus-
ibie and persuasive the argument IS,
the court cannot find where such
authority is given at common law
or by statute; besides, there are
good and sufficient reasons why the
Legislature should authorize the COM
hitting courts to exercise this power,
which reasons do not apply with the
same force to the other courts. After
an examination is had before q magis-
trate. without this bond being taken, the
witnesses are under no further legal OBJ
legation to appear anywhere to testify.
The higher court to which the party is
committed for trial is ignorant of the
proceedings below, can issue no process
for the witnesses, and, unless there was
some power in some one to require them
TO appear at the next term OF the court,
the guilty party might never even be in
dcted. The Legislature has, therefore,
very wisely provided against such a con-
tingency by clothing the magistrate
with this power. The accused and the
witnesses are then, by these proceedings,
all brought before the court and within
its power.
At this stage of the prosecution, the
law points out the mode Of compelling
the attendance of witnesses in criminal
cases. Philips on Evidence, vol 2, page
1874, says:
"The means of compelling the attend
ance of witnesses in criminal cases
are of two kinds:
lst By process of subpoena, for dis
obedience to which the person served
with the process is liable to attachment
for contempt; or, secondly, the Justice,
or coroner, who takes the information of
witnesses, may, at the time of taking it,
or at any time before the trial, bind
them over to appear; and if they refuse
to come, and to be bound over, may COM
nit them. This proceeding, by recog-
is the ordinary and more effect
nal mode.
The annotations, to Philips on Evil
lence,,i referring TO the statutes OF New
FORK giving the powerto the committing |
courts, which are similar to ours, say |
By these sections witnesses are TO be |
,ound by the examining magistrate in
to the next court having
of the offense. He may
equire security on proof that the wit
less will probably disregard his recogni-
.anee. Infants and married women are
# course to give security if required |
md all the witnesses may be compelled
o give the recognizance ordered, by inn
until they comply. This
tatute omits to give a similar power Of
equiring security to any Of the courts,
Tor have they any such power at com
non law, nor by implication from any
'ther statutes. 5
In this connection the same writer's
efer to and approve Of a decision made
" the Supreme Court of Kentucky IN ].
/. MarshaIrs report, vols. ] and ii, page
IN, in Buckley VS.. Commonwealth. |
The following was the order on which
he defendant was committed 10 jail.
John Buckley being summoned as
witness in behalf of the Commonwealth,
against William Greathaus on an indict-
nent for felony, it is ordered that the
said John Buckley be recognized 10 APP
pear here on the first day Of next No
vember term of this court, himself in
the sum Of $500, with one or more secu-
rites in the like sum; and in default Of
his entering into said reeognizance that
he be committed to the Jail Of Mason
county" He failed to enter bond as re-
CURED, and was committed to jail; he
was brought before the court upon
writ Of habeas corpus, at the same time
assuring the court that be was unable TO
give the security, and offered to enter
into his personal recognizance, which ,
the court refused, and he was remanded
to jail.
The court assigned as reasons for re-
fusing TO discharge the prisoner: THAT
he was material witness in the prose
cution against Greathaus; that he had
been subpenaed to attend as witness
at the October term, and had failed;
that an attachment was awarded against
him in consequence of his failure to at
tend, returnable to the May term, which
II. = 7