The New York herald., 1872-05-01
Decision Upon tho labeas Corpus Cases By
Judge Brady. Of tho Suprens Court.
The Prisoners ALI 70 Be Tried
Over Again.
Their Commitment to the TOmbs
To Await Trial.

tried ana convicted Ut tne COuTJ vi cpeChl ceSSOuh
for whom, under recent decision Of the Court Of
Appeals declaring the Court Illegally constituted,
writs OF habeas corpus had been granted. It viii
be seen that the multiplicity of prisoners looking
for speedy restoration to liberty will be somewhat
disappointed and their saDguine hopes not alte-
gether realized. Instead of being set free new
trials are ordered for such "a desire them, whtis
those who prefer to serve out their present ternS
OF sentence to the annoyance OF delay and risks at
tending new trial are allowed to do SO. But tho
characteristic trait of this Judge to temper Justice
with mercy showed itself even farther than this,
Taking the ground that the law has been vindicated
by the Imprisonment of the offenders, ana not de-
String to unnecessarily punish them on account OF
the Illegal constitution of the Court convctng
them, in case or another trial and conviction each
is to be accredited with the previous term OF i'm
pris0nment. The following is
THE OPINION
The numerous REALTORS ask TO be discharged upon
the ground that the Court OF special Sessions IN
which they were tried, convicted and sentenced
fore IT, therefore, corara non }tdce and void They
do not claim that the evidence given againSt
the heH was Of 1f the es
that any right of theirs was invaded or dis
regarded other than In the respect named, ana
their application to be discharged, therefore, rests
upon the broad principle that, by the constitution
OF this state person can be twice put In jeopardy
Court of Appeals In Huber, palntiT in error, vs.
The People, defendants in error stops all contro:
versy to the proper organization OF the Court ot
special Sessions, and has determined that 1t was
not legally formed when the various REALTORS werq
presented springs of this decision and Its eGec
IL la universal maxim OF the common law tnat
more than once for the same offence Il Backstones
Conn., $3.50 and the provision Of our present a., con- on
same oflence to be twice put in jeopardy y Is but
declaratory OF the common law, and or the maxim
Of the civil law."non ois ~ tde,n n-lklock us.
It is said that no man can be regarded
within the protection OF this rule unless he can
coseict; in other words, the plea Of former con-
ylction or acqutta for the same offence Broomes
Legal MaSms 1871 Bowler Law Dec I'll TT. ~ Jeop-
curity from unjust prosecution, which the rule
was designed to prevent, the duty devoives upoa
him to show that he has been absolved by former
trial and conviction or acquittal, and such trial
and conviction or acquittal as contemplated by the
The subject Of Jeopardy within the meaning Of
the doctrine Of the common law, embodied In the
orately considered by Bishop in his admirable
treatise on criminal law and is there discussed
with ability clearness and research yol L. section
1884, ct pdsstIn.) He states the rule to be-and he
sustains the proposition by numerous authorities,
to some Of which reference will be made-when 4
diction of the offence with which he Is charged,
or deriving its existence from the unconstituA
authorized by law OF from any other reason, having
no authority TO try him, he is not IN jeopardy how
ever lar tne Tribunal prOcceuS. Anu We uHu buDs
stantallv the same result stated by Blackstone. He
saws If a man Is once fairly found guilty or not
guilty upon any indictment or other proseeuton Des
fore any Court having competent Jurisdiction OF the
oence he may plead su6ii conviction or acduitta IN
bar of any subsequent accusation for the same
""-Se b. Conn., pp' $50, Sss 80 tnja The vIs follow
ing cases are . nrts ~ Il rhachefs CTm
Cas-. 2o2; The State vs.. Odell Backf., hep, lae,
Rector ". The state, Ark Rep, lSd; 1iex vs..
Peters, 12 Mass. Rep, 8S7; Hawk ?. G., c. 35, SEQ
ton 5; Dunn vs.. The state Ark Rep, 22o; Cc-~r-
The State vs. Spencer, 10 TIumph Rep, AL. In tho
cases Of Rector vs. The State, Rex vs.. bowman,
Dunn vs. The state, and in the case OF the Common
wealth vs. Hyde, supra, there had been convictions,
but the Court had either no jurisdiction to entertain
the prosecution or the term of the Court was i'm.
In Dunn vs.. The State the conviction was OF mur.
der, and the prisoner was sentenced to death. The
Court in which he was tried, by The omission OF q
proper duty upon the record, was not regularly
hnlden, and the proceedings were from the time the
trial cammeEced declared to he .coram non t,dtce
and void he prlscSer liable to be convicted as Il
had not been in eopardy, ha,ng been improvldent.'
y rreguaryW taa "a and illegally aa iurs nSs
having any legal existence. No man can be said to-
be placed in jeopardy, however correct the observ
ance of form and ceremony, when tried by a Court
having no authority to render valid Judgment.
He is not in jeopardy whose liberty is not endan.
gered, and no mans liberty is itnperilled II the
Court has no jurisdiction of the offence with which
he Is charged, or, having jurisdiction fails to observe
warrantable The acts OF such O5urt are abso.
lutely void and accomplish nothing In legal c0ntem
platlon. No power Is employed, no authority exer-
clsed when the tribunal Is an assumption wholly
destitute Of the essential elements OF magisterla
supremacy Tested by these views is apparent that
yiction and are not therefore entitled to be abso
mtely discharged The offences imputed to them
Of PERSONS Committed or indicted for VOCATION q
law seeking to be discharged by habeas corpus ana
subject to the provisions OF the statute which goY,
s $ea hS sr my SS o%s. aSs SS ssn,l lsssy BY s
and the case he not bailable, or, If bailabe good
ball be be not offered, they must be forthwith re-
VIII therefore be discharged from the Penitentisry
and remanded TO the Tonbs to he tried of the COM
mitment, If the evidence requires such course.
anu nail be not given In accordance with the statute
In conclusion, I think proper to suggest en- 0ebtto
Justnt0, that the REALTORS should be allowed the
privilege OF Withdrawing their applications to be
sioie, II not probable, conviction and sentence,
ana ,,iEar TO AL al who ask 1T the liberty win be
theory that If tie State treat an 'pG~ unconsti
tutional law as valid, and conviction under
tence should be regarded rs good until reversed,
and further proceedings should not be carried on,
fringement of the constitutional guaranty NIcGin-
mis- VS.. The State, Humpb; Commonwealth VS..
Lou'i Met Rep, 20s; BISHOP on Crlnl Law, VOL L.,
sec. 6s3l.
deem IL proper also to say that If another trial
shall take place the REALTORS or any OF them de-
clinIng to serve out the sentence pronounced and
conviction follow, the portion of the punishment al
ready suffered should er deto t,sttta, be accred-
tied In the penalty that may be imposed. The
law has been indicated In these cases by the I'm
prlsonment OF the offenders, and II would not com.
port with the dignity of the people or with our
OF right that they should unnecessarily suffer
for erroneous proceedings initiated by the people
IN the legality OF which they have for some time ac,
Quicsced.
/ have forborne TO consider whether under our
constitution misdemcanors are Included in the pro-
hibltion of jeopardy, inasmuch as the REALTORS have
not brought themselves within Its protection as-
suming their cases 10 be embraced within its mean.
ing.
DISPOSAL or THE PRISONERS.
There are 23i prisoners whose cases are dismissed
OF by the above decislon
On the rendition OF the decision Mr. William,
Howe whn N y.