New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1872-04-04
AN ALARMING DECISION.
OPENING THE PENiTENTIARY GATES.


SPECIAL SESSIONS PRONOUNCED ILLEGAL
the HUBER CAsE-THE MIscAL Casa
GENERAL PENITENTIARY DELIVERY ANTICi-
PATED-INGENI0US EXCUSES FOR BARNARD
AND CARDOZO.
decision was rendered in the Court Of Appeals, at
Albany, on Tuesday afternoon, Of much more impor
lance than apparent from the brief Geographic
dispatch, by which it was announced. The necessity
Of the investigation now being made into the judi
cia machinery of this city, is clearly proved by this
decision and its probable results. For some time
past the legality of the Court Of Special Sessions has
been questioned, it having been claimed that
| the act creating the Court illegal; and
further, that the Justices Of the Court evaded
the requirement Of the act, and were constantly
violating the law and rendering the city liable to be
overrun by convicts liberated consequence Of
illegal judicial proceedings. The act authorizing
two Police Justices to sit in the Court Of Special
Sessions either one to act in the case OF the other
being prevented from sitting through disability, was
passed early in 1871, and Justices Shandley and
Bowling were designated to preside at this Court.
For mutual accommodation these two magistrates
sat at alternate weekly terms, and while some con-
vctions Endorsed to the effect that the Justice
lot sitting prevented from doing his duty by da-
bty others Endorsed to the effect that both Justices
sitting, when in fact only present. As q
natural consequence of this irregularity was
pealed, as follows:
william Huber was tried at the Court Of Special SEES
sons for larceny and the 10Th Of December 1871, was
convicted Of the oense and sentenced by Justice Dow
ling to six months imprisonment in the Penitentary on
Biaekwes Island Huber's counsel appealed from this
decision and carried the TO the Supreme Court.
where motion to set the conviction aside was con-
sdered before Judges Ingraham Cardozo and Barnard
| The point made by defendants counsel that the
court OF special SESSIONS rreguary constituted,
only one of the Justices having present and
ntIn, i..s,.
nature Of the disability stated. In rendering
the decision, Judge Cardozo, in elaborate opinion,
concurred in by Judge Barnard held that the Court
legally constituted, thai there irregulary and
that the general staten ent the conviction that Of
the Justices Of the Court absent through disability,
without any specification Of the disability, met the
quirements Of the statute Judge Ingraham dissened
from this opinion, and held that explanation Of the
disability which prevented the attendance Of the miss
| ing justice, was absolute necessity.
The case then taken to the Court OF Appeals by
which the decision of Judges Cardozo and Barnard has
just been Overruled and the opinion Of Judge ngraham
affirmed This fact telegraphed to this city on Tues
day night, and the first result extraordinary
motion made in the Court OF General Sessions yesterday,
before Judge Bedford in the OF James Misca who
had been convicted at the Special Sessions OF INSIDE
rDeanor and sent to the Pententlary on Blackwelrs
| Island upon the sentence of single Judge
sitting at the Special Sessions. MIscal was
| arraigned for trial Indictment charg-
ing him with picking the locks and escaping
Pententiary the punishment for an ofense OF
this character being imprisonment In the state Prison
for TWO years. william F. Howe, counsel for Mscal,
moved to qussh the indictment, the ground that tho
| decision of tho Court OF Appeals had proved tho
| conviction and sentence Of his client illegal and
| irregular, and that consequen fly Miscal, having
been restrained Of his liberty without due process
| of law, had committed no ofense in eseap'
ing from illegal confinement. Mr.. Howe also said
Tar nf
which was rendered by Judges Barnard and Cardozo In
the Huber case Judge Ingraham dssentng) was gwen
for the purpose of securing an adjudication OF ~ ques
ton by highest Judicial authority OF the state anu
that Judges Barnard and Cardozo expressed her True
opinion the subject when passing upon the numerous
writs of habeas corpus which have been submitted 70
| them.
Mr.. Howe's ingeniously interpoated defense OF the
two Judges might under different circumstances be re-
garded fayofaby; but in view OF the TACT that very
many of the discharges from the Penentary granted
by these Judges occurred prior to the passage OF the ae
regulating present constitution OF the Court OF Gene
raj Sessions It appears somewhat trivial Again. IL Is
questionable whether these judges, who have dstin
guished themselves by peculiar asuteness as well az
reckessness would stufy themselves by rendering de-
cisiongving opinion and then pleading as an excuse
that it was for the purpose of settling vexed question
on higher authority. Mr. Howe, after his somewhat
dscursive remarks pressed for the discharge OF his
CLIENT Judge Bedford remarked that ne had hot ra"
~ oo,sion referred TO- and declined to discharge the
| nrsoner but, would withhold his judgment until lie
uId procure copy Of the decision Of the Court Of Ap
meals. and read 1t with the attention it deserved
Among lawyers seems to be generally conceded that
whether the decision Of Court Of Appeals says that
the whole unconstitutional or that he TACT OF out
one Judge sitting alone makes irreguarity, there is
good ground for that the pententay will be nearly
epeted Of its inmates and that the city Will be infested
by these dangerous characters until fresh crimes snail
cause their reimprsonment.
prominent lawyer said yesterday In reference 10 TINS
matter that the decision Of the Court OF Appeals woud
appear entte all prisoners whose cases correspond
with that Of Huber to be discharged In speaking vi
the effect which the decision would have as rega"s Ine
evidence taken against Judges Cardozo ana barnard
before the Judiciary Committee, he SAID: III Is ueu'
70 how this decision can Judge by
his oppon at the General Term has committed himself to
the conclusion that persons whom he discharged were
not entitled TO release, and OF course tne Court vi ny
meals cannot Justify Judge Cardozos action In grant
| inc discharges in cases the circumstances OF winch
differ from those In Huber Not only has Judge
Cardozo committed himself TO the view that those who
he DISCHARGED were not entitled to their liberty by h
| onnion delivered ut the last General Term OF the 81
nreme Court but also by fact that while he was dis
charging prisoners on applications made by one firm
aftornevs he was steadily refusing applications on SINH
| lar eronnds from otheriand less favored lawyers
IT ia NOT pleasant TO contemplate the possible conse
auences this decision, and II those intruste WI. S
Conservation of public peace had been less sunJee.
disabilities which have 30 susans Beneh by tho
Police Justices designated to preside AT tus' , @
city would not have Incurred the danger OF being over
run by hundreds OF lawless ana desperate cri"inas
|