The New York herald., 1874-12-23
E Court 70 try the misde demeanor we allege


OF all complaints ior mlsdemeanors. NOW
what does that mean The Court VI
oyer and ierminer has assumed tnat Jurlsalction.
Does 1t mean that the Court OF oyer and Terminer
can or cannot assume snch Jurisdiction DOCS
exclusive mean here exclusive or notnng at
ali The statute says that no 60dy IN tnis counsy
no court or onicer shall have lursuicion ~ ,a, oo
piaints Tor mtsdemeanor but the couit " Speoia. p
Sessions. II that be 80 then mere Is your susweL
to all tins. Counsel says that the Court Of oyer
and Termlner has already determined tnat cues
tlon Granted. But have yet TO earn tnat .
court ca u conclusvely decide on question OF its
own jurisdiction. NO court IN TINS county can 40
that but the supreme Court OF New YORK. The
general prncIple OF the jurisdiction OF court 70
render Judgment IS question ol law whicn may
be reached IN an Ss sbeTe Is no m e1eeeon ex
cept wnere the court deciding Is authorized 10 de-
clde on lts own eonclusi3as. he ,Wensecona
what is competent triDunap II the highest
court in this county should come into this Court,
If Your Honor had adjourned IT, and take your
place and sentence man to oe hanged for murder,
it would not be competent court to pronounce
tent Tor US allege that, instead OF there being
twelve men in the box TO pronounce verdict,
Can we not prove the TACT athas the Judge
empanened The jury by his own directions
to the sheriff 80 summon only such an and
were In the box, and that they rendered
TINS pretended verdlcts How do you know we
cannot? II YOU strike out our allegations then
under no circumstances can any party brought up
habeas corpus prove tnat jury was EN-
panelled Improperly or was not empaneiled at all
and that the Court entered on the record tnat
there was jury, and that that jury rendered the
verdict mention these extreme cases as COM
petent Tor us 10 aver tnat there was jury legally
empaneled. As to the question oi jurisdiction,
concede You are not to Try al questions 0. law
except those which go into the question OF Juris-
dcuon, out whatever goes 10 that question you
must try and decide, and We have our remedy by
heads or articles is equivalent to saying
that we cannot prove tnat the indictment
nal. We offer tins proof Do you reject its II SO,
give the benefit OF IL, and let us go TO the APP
pellate Court. II tnat would Ia Se away the urls.
dic,ion OF the Court OF oyer and Termlner we
have a right 10 do II. We aver tnat the pretended
trial and conviction was lor one misdemeanor only,
ana tnat. consequently, only one punishment can
be inflicted, and 1t Is Tor you TO say whether the
Court nad power 10 sentence Tor more than one
mlsdemeanor. 1t may be that there is a certain
degree OF incongrulty to allow one Judge to Sit
review upon the judgment OF another court held
by one Judge But there Is really no lncongrulty
IN il. One sits and acts as an on1cer the otner
sits as court. And again, every onlcer author
ized to issue writ OF naoeas corpus Is bound to
inquire into the validity OF tne record.
Judge Barrett-How can take jurisdiction, sit
ting as Juage In over and Termlner or alter the
form OF the writ or get jurisdiction, except on tue
lace OF the writ
Mr.. Fleld-slmply by holding to the construc-
tion OF the statute. NO court mas an lhnerent
right to Issue writ OF habeas corpus. The Court
OF Oyer aud Terminer is a court OF statutory
power ana nothing more. The meaning OIL the
tweaty-seventn section is that the Court OF oyer
and rerminer shall commence business ID the
county. and no prisoner on criminal charge
shall be removed therelrom, except on naDcas
corpus issued Dy such Court OF oyer and Termi-
ner and returEable oefore It. That would not
have the effect OF giving the Court Jurls-
an officer only. The object was to pre-
vent a person detained in jail awaiting trial
parts OF the state by haoeas corpus when a court
was there reaay TO try the case. II you nold the
that jurisdiction is gwen 10 the udge holding over
and Terminer, and the whole benent OF the law Is
say that indirectly jurlsdict,on is gwen to the
oyer and Terminer; the Legislature would nave
said SO, that the Oyer aud Terminer mas Jurisolc-
ton 10 issue writ OF nabeas corpus to take the
return. II counsel ON the other side say they ad.
nit our allegations that is the end OF 1t.
Judge Barrett-Are they bound TO answer the de-
murrers
Mr.. Fied-Certany If they do not ali our aiIega-
tons are TO be taken as true; the burden OF proof
Judge Barrett-Is not the traverse the last
pleading
Mr.. Pleld-We may deny any OF the material facts
set lorth
Judge Barrett-The proper way Is to make an
oter under each section OF your traverse OF proof.
NIL fleld--Ne are content to do that; that dis
position OF the case will answer our purpose.
Judge Barrelt-Whether the question oil iact he
admissible or not take 1t that the is the
last pteading-the same as under the code. III the
would ike to demur they can demur ana the case
go 10 trial.
Mr.. Phelps-Do understand Your Honor to
deny the mOtion2
Judge Barrett reserve the question; think
the practice as suggest IS tue correct one; viii
make no formal rullng now as to the factS
Mr.. Pneps-It becomes material 10 determine
the proposition whether the writ ls now Defore
Your Honor as Court or as a magistrate. l sup
pose the object OF section p, to which attention
has been called. in making the writ returnable be-
fore the Court OF oyer and Terminer was that, be-
ing before the Court, the Court would nave judi
cial knowledge Of It's own proceedings, and tnat
the person detained in Jail shall be brought before
that Court to take judicial notice tuereo. and not
take notice OF the facts on your own record
Mr.. Fields the record before your honor?
Judge Barrert-Yes.
Mr. FIeId-Tnen the record proper Is called a
bill OF exceptions.
Mr.. Phelps-I don't see how we are going to take
cOgniZance Of a bill OF exceptions here.
Mr. Fleld-The record CONSISTS oil the statute-Of
the record and dill OF exceptions VIM the Court
Say whether that Is so or notf
Judge Barrett-The bill OF exceptions Is not be.
Mr. Field-The bill OF exceptions is part OF the
record. TO Mr. Sparks}-Clerk, where is itY
Mr. SparKs-On file.
Mr.. SPARKS soon after produced the record from
the files OF the court
Mr. Phelps then proceeded to argue his further
objections. He saw further serious objection
ayerring any sucn facts az they proposed to prove.
ana that under the general allegations ano con-
% o ac pesde 20 n e
prosecution were not bound 70 meet any such
proof
Mr. Field-wili you admit the hne OF $50 was
paidY
WRIT or cEgrroRARr GRANTED.
After some further discussion, Judge Barrett
SAID would grant the writ OF certorari, but
preferred that another Judge shonid sign II.
Mr. Field then stated thai this was all the proofs
he nao aud, Ii the Court thought proper, he was
prepared to argue the case.
Judge Barrett did not think that this was
necessary and announced his decision refusing
the discharge OF the prisoner,
DIsMissiSG TIE WRIT AND RExASDING TIE PBis-
ONER.
Mr. Field then applied for a writ Of certiorari, to
be argued before the General Term 10 morrow,
but the Court stated that 1t would be preferable
to MN that the application should be made to
some otner justice.
Counsel then left the court room to make the
application ior the writ oi certorari, and recess
was taken.
BAIL REFUSED.
After recess Mr.. Field moved to admit the de-
fendant TO bail, pending the granting OF the writ
OF certlorarl, which was denied 10y tue Court, on
the ground tnat the act Tor the granting OF bail
related only TO persons charged with any crime,
and not those who were convicted OF an offence.
Shortly afterward writ OF certorari was
cd bv a On ca a