New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1871-01-07
THE COBBLEK HABEAs CORPUS.
DISCHARGE Of the Prisoner


Discharge Of tho Prisoner.
In the Cobbler habeas corpus case the
following il the decision in full. rendered
yesterday morning by Judge Cooley. OF the
Sixth District Court:
The reiatOr. Frederick Cobbler. alleges
that he has been illegally restrained Of
liberty by Captain Gibney, and the keeper
OF the City WOrkhOuse, under the pretence
OF sentence Of conviction rendered by one
Myers, Justice Of the Peace for the city Of
New Orleans.
The parties who hold Cohbier have pro-.
duced him in court. and have made return
that they hold him in custody by virtue OF
4 commitment issued by Justice 5lyers. The
commitment produced shows that Cobbler
was arrested by virtue Of tho authority
! conferred by the recently approved act OF
the last Legislature. as Sasrant: was sent
to the Police Board. who, believing there
| was good grounds 20 justify. his arrest,
caused him to be tried on the charge of va.
grancy by the aforesaid Myers. The trial
having resulted IN his conviction. the
| commitment aforesaid was made Oat by the
justice.
This commitment IL very carefully. and
may say, very skilfully worded. and is :.
model document in thcs days of ignorant
and incompetent magistrates. 1t ia the
first OF its kind that l have seen. which. in
relation to form, can bear the test of the
slightest scrutiny. Therefore. no question
as to its form has been raised.
The issue raised by thu. re!ator is. rs 20
the constitutionality Of the act under which
he was convicted. IL Is said that the act
cOnfcrs upon justices Of the peace the right
to try and determine the guilt OF innocence
OF Il party charged with the commission of
all offense against the laws Of tha State.
! That the Legislature could not grant such
power to the justice of the peace. because
Of the prohibition contained in article
nincty y-four Of the constitution. | can not
concur III the argument q: tn" teiator on
this point.
1t IS true that. 20 determine his guilt or
innocence, is = judicial function: bu; it is
also true that justices OF the peace are
officers mentioned in the constitution in the
section relative to the judiciary department..
The prohibition contained Ill the ninety.
fourth article applies only to such officers
as are no' mentioned in the section Of the
judiciary department.. Eor example. the
Recorders OF tha city. or the Board Of
Metropolitan Police. not being officers men.
toned in that part of the constitution. no
judicial functions could be assigned 70 them
by an act oi the Legislature.
But conceding the point that tn. Legis-
lature had the right to grant I" justices of
the peace the right 10 try vagrants. still. IN
my opinion. the act in question IS uncon.
stitufional for several reasons.
l. 1t provides for the right to trial by
jury. if the party charged demands it at
any time before sentence Is pronounced
upon him. This Is not in conformity witt!
the requirements OF article six OF the con-
sttution. which entities ihe accused 70 a
trial by jury. The mere silence %: the pris.
oner az to the mode. OF his trial does not
ahnr y,Ivr, nYs h, irht -, iol hy-ir
1t ia doubtful whether .hr accused has
the righ. 10 waive - talr trial by the jury at
all: but there can b-' No question. no doubt.
that law which forces MIN in the presence
of Il tribunal where there exists no jury. is
constitutiOnally wrong. Under article six
OF the constitution, =, person accused OF
crime must be broaght before tribunal
composed of judge and Jury. This is a pre-.
requisite. Whether the accused snail avail
himself Of the eight to the trial b.v jury is =
matter for subsequent rejection on his
part but IN the begindin. it is the duty of
the State - tender to him the trial which
is guaranteed by the constitution. This
duty the State does not perform if il takes
the offender before judge who has no
power to summon \ jury. 1t IS no answer
10 this 10 say that the act in question pro-
vides fora trial by jury, if.the party accused
demands it before sentence. The proceeding
no, performed its duty to the citizen--has
not placed him before a tribunal possessing
the legal power to summon \ jury. Article
six Of the constitution requires this from
the State. When the accused is thus placed
before tlN properly constituted court, it
may 1e he has the right to waive the trial
by Jury. but even this Is doubtful. In 1860
or 1866 the Supreme Court of this State set
aside conviction found by the Judge OF one
! of the country parishes, the accused having
waived a trial by jury. The point OF thu,
decsionOwaB that the accused could not
waive his right to trial by jury. In view
of this decision, the trainers OF the cons,i-
tuition gave the accused the right TO waive
jury. in order to facilitate his trial by the
Parish Court. See article eishty-seven.
But, Of course. this has no application to
the parish Of Orleaus. where there is no
parish court.
. The act allows Of the arrest Of any one
who IA supposed to come within its deiini-
ton of yasrancy, without any affidavit. and
without any warrant whatever. The offender
is brought before the Police Board, to which
are delegated the powers OF committing
magistrates; and afterwards, the accused is
sent for trial before a justice Of the peace,
designated by the Board. No indictment,
no information. is required. In that respect,
the act violates the provision contained in
article ak Of the constitution. which reads
as follows:>
"Prosecutions shall be by indictment or
information" The Governor of the State,
in a message recently delivered by him to
the Legislature, disappearing of the bill
commonly known as the "SOcial Equality
Bill took the ground that The bill disap-
proved by him violated the constitution, be-
cause it did not require the prosecution
quired to be by Indictment or inforna ton
quote the language of his Excellency:
alt i. evident that in the plan Of action
proposed by the bill. there is no opportunity
for au indictment information. The
accused is not to he apprsed with legal
accuracy OF the nature and circumstances
of the otfcnse with which he is charged, nor
is If to be so described that record may
be kept which will prevent him from being
tried twice for the same o1ense.''
This is sound constitutional doctrine, and
in This ease it applies with great deal more
force, inasmuch as under the vacrant aet
the party accused is arrested without
affidavit or warrant. whereas. in the bill
vetoed by tho Governor. the arrest could
only be made ION affidavit liled and certi-
fed"
The decision in Is A. T., relied npon by
tie counsel to sustain the act against this
objection, is. 10 say the least, very strange:
and it il a matter Of tradition with the bar
o! New Orleans that it was never considered
- correct. One of the judges, the Chief
Justice, Gissented. But at all events with
out proceeding to show the iMcOrrectncSs Of
the decision. it is sufficient to say that it WAS
rendered under circumstances which do n'ft
now exist The constitution of 1882 specially
granted the power to invest the Mayors and
Recorders Of the city of New Orleans with
Judicial functions. The court thought that
the trainers Of the constitution of lS5.
tu ma ni