New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1874-07-11

may not go behind the commitment and in
| Quire whether the magistrate had jurisdic-
| ton; whether that jurisdiction was properly
exercised under the law, and even whether
there is a properly defined offense in the
| statute under which the magistrate has
| acted, but there is very great and
most important difference between un-
| dertaking to determine that the mag
| istrate has not acted within the scope
| of the law, or that the law does
not properly define the offense intended to
| be created, and determining that the Legis-
lature violated the provisions of the constr
tuition in enacting the law. The question
determined in the former case is the capaci-
ty Of the magistrate to act, in the latter IL
is the power Of the Legislature under the
constitution. 1t seems to me that the
simple statement of the question should
suffice to convince any unprejudiced mind
of the force of the distinction. 1t is impos-
sibie to form proper estimate of the dam
ger in which community is placed by
failure to recognize that there are some re-
strictions to the use of the writ Of habeas
corpus. When judges banker and reach
after jurisdiction not vested by law then
and tranquility, and that process which
was intended as benefit becomes curse.
| If under writ of habeas corpus the consti.
tutionalty of law can be the only issue,
and the on Judge who hears the case
can by his decision render the law
| imperative as to all other judges and
| courts. then that state of things has
been arrived at which never could have
| been contemplated. Ii that view be correct
an evil disposed Judge can open the doors
| of all jails, and set the laws at defiance.
As an instance Of how far this writ may be
sought to be abused, an occurrence OF only
short time since is in point. Two persons
accused of crime under regular and
proper information, filed in this court,
applied to the honorable judge of the Fifth
District Court for writ OF habeas corpus
to be discharged from custody; one of the
grounds set up for the discharge being that
a verdict Of not guilty had been rendered
by jury upon a charge substantially the
same as that contained in the Information,
thereby virtually asking that court to de-
eide plea of aut,e fois acquit, on case
pending in this court; of course, the appli-
cation was denied. One judge might easily
destroy the usefulness OF courts of equal
dignity and more jurisdiction, if, in a
writ of habeas corpus, the constitution
ality of any law can be determined; as
another instance, let US suppose that
the honorable judge of the Superior
District Court should commit person for
contempt, the commitment being legal in
form and substance, the contempt unde-
MED. and that the person held for contempt
should apply to another district judge for a
habeas corpus to be discharged upon the
sole ground that the Superior District Court
had no constitutional existence, and that
the law creating the court was uncOnstitu
tional; can it be seriously maintained that
the decision releasing the prisoner would
have any binding force!
1t is useless, however, continuing the dis
cuesion of this question. The Code OF Prac
tice has expressly provided in what cases a
Judge shall not discharge party from con
finement. Article S32 commences as fol
lows: 'If it appear to the judge from the
return to the writ or from the accompany
ing documents, that the party is confined
by the order of some tribunal, he can only
restore such party to liberty in the follow
ing cases: Paragraph seven. where
there exists no general law, judgment
order or decree of a court of justice, i
it be in civil suit, or sentence OF convic
ton if in criminal suit to justify the i'm
prisonment.'
In Riguelmy's case no pretense is made
that the commitment was not in legal form
nothing was claimed except that the law ii
unconstitutional. This the court had NJ
power to pass upon in that proceeding un
der the provisions OF the code, and hence
the order for the release was nullity, anC
the sheriff should not have acted under it
| III NAV Do prtlcuuCu tudI LILO WOEuS Scu
tence of conviction" apply only to a con
viction by jury. THIS pretense is an in
significant bubble. 1t is we'll settled tina
these words are as applicable to a summary
conviction under a penal statute before :
justice of the peace as upon the verdict OF {
jury.
conceive it to be my duty to uphold tn
Jurisdiction of the relatOr as a police justice
where it becomes a question as betweel
, | a. y1n I,v VInr has
visory jurisdiction of this court, and havinl
duty to perform l know Of no cOnsidera
ton that will induce me to avoid it. BE
sides the other questions considered it is
question of grave doubt with me whethe
one court has right by a writ Of habea
corpus to the executive officer of anothe
court to take prisoner from the custody
OF the latter; in the case of Sim, CUSHING
2S5, the power was doubted.
1t is of great Importance to the commu
nifty that instead Of belittling and treatin!
with disdain courts that are created by th
Legislature whose jurisdiction is of vita
Importance through limited, they should b
upheld and assisted in the performance o
their duties and exercise of their jurisdlC
ton.
Something was said in argument abou
a conflict of jurisdiction; there can be nom
where each court confines itself to tina
jurisdiction that the law has vested in il
and SO far as this court is concerned it sol
} emnly AYERS that every fair means will b
adopted. and every exertiOn made to avolt
, it. 1t is furthest from my views and inter
tions to review the action Of any Judge
but where the act of a Judge affects the al
, ton of an officer of the court over which
have the honor to preside, can not, If
would, avoid the responsibility of deciding
If any way can be suggested in which m
action can be submitted to the Suprem
! Court of the State l shall cheerfully affor
every opportunity and extend every facll
ty for that purpose.
, For the reasons 1 have given l am eol
strained to decide that the sheriff had n
valid reason for releasing the party unit
, the sentence imposed by the police magi
: trate was complied with, and must ther'
fore order him to rearrest Esteban Ri
uelmy and hold him under the origin;
commt tment issued by Hon. E. Staes, ju
tice of the Second Municipal Police COur
unit! the sentence in said commitment sc
forth be complied with. Let the order b
} made accordingly.
: ARRA1GNED.
Burglary-John Hick. Plea of not guilt
NEW TRIALS GRANTED.
Bartholomew Touro, murder; jest
Woods, murder; L. S. Latourette, extortio
in office, etc.
Grand larceny-Dorsey Wilson, ALI
Lightning Duffy.
Carving concealed, weapons-A. P. o
lage.
SENTENCED.
D. C. Coplin, grand larceny, five years
, the Peniten.iary.
, Dorsey Wilson, grand larceny, four yea'
in the Penitentiary.
A. P. Oslage, carrying concealed weapol