New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1875-12-14

supreme Court.
Present-An the Judges
The following decisions were read:
RRHKARISG REFUSED.
No. 577s. State vs.. Pete Phillips.-Perjury.
BY CHIEF JUSTICE LupKLlNG.
No. b0l8. Application OF David Henderson fol
habeas corpus.-Fhe petitioner represents that on
the twelfth of Nav, 1875, there was returned into
the Superior Criminal Court of Orleans, by a body
styling themse Yes a grand Jury, true bill in,
dieting petitioner for murder. he represents that
he was tried on said indictment and convicted,
and was sentenced to be hung. He represents that
the men styling themselves a grand Jury were not
grand Jurors and had no hight or authority in la
to itdict pet !ioner because they were selected
and oigauIzed by George H. Braughn, who was not
j dge OF said court at the time, and that the in.
d etment and all proceedings under it were null
and void He alleges that lie is unawfully impris-
once under said conviction and Judgment, and he
prays to BE- discharged.
1t appears from the evidence that the grand
Jury was impaneled the fifth day of April.
1875. by George II. Braughn. attorney appointed
by Judge Atocha 10 preside in his stead Judge G..
H. Braughn was commissioned on the tenth of
April, 1875 and he qualified the twelfth as
Judge of the Superior Criminal Court of Or.
n ae be 'he I
fourteenth OF May the accused was arraigned and
pleaded not guilty; onthe twentieth OF May list of
the twenty sixth of May he was tined by Jury
and convicted and on the seventh of June, 1875
The only iiesslity coup aimed of is the selection
of the gland jp-y by q. Braushn, while he
acted under the appointment from Judge AtOcha
and before his commission by the Governor. Can
this Illegally be inquired into after conviction and
sentence by the writ OF haDt as COL u;!
The State constitution recognizes the writ of
babeas corpus AID designares the courts which
may issue it, but il does not point out the in
which it may be used as remedy, except that
the Supreme Court or the justices thereof shall
exercise this power only in cases IN which the
cour might have appellate jurisdiction.
To ascertain the cases in which the writ may be
granted, we must recur to the English law aud to
the statutes OF the State which have provided
specifically for partfniar cases; me haoeas corpus
habeas corpus shall be granted on the complaint
and written request of any one committed and
charged with auy crime, unless it be for treason
or felony expressed in the warrant, or un.
less he is convicted or charged in execu'
ton by legal process" comm 3, Bl, 49, Chan:
THE explicit and pertmptory provisions
of this statute, OF 81 Charles II &C. restored the
was requisite for the due protection of the liberty
of the subject" the statute has been re enact sd
eject II ali these e' United St tesi Kent a. Ar
tioe 322 of the Code OF Pract ce dee ares: If ap
pears to the Judge, from the return TO the writ or
is confined by the order of some tribunal he can
only restore such party to liberty in the following
al Where such tribunal has exceeded its juris-
diction as defined by law.
%; Where the original imprisonment was law
full, but by some act, omission or event which has
since occurred the party becomes entitled to his
liberty.
.. where OfutT Vi imprisonment Is Qtu-
cient in ssme legal requisite.
~. Where the order, although in due legal form,
has been rendered in case where the law does
not q low the issuing Of orders of arrest or i'm.
prisonment.
IS. Where the order is in due form, but has been
rendered or executed by person not authorized
for that purpose, or where the person OBTAINING
the prisoner Ia not the person to whom the law has
prescribed that duty.
&c. Where the order appears to have been OBJ
tanned under false pretenses or corruption.
81. Where there exists no general law, judgment,
order decree of q court of Justice II 1t be in a.
civil suit, sentence of conviction. II in . Grim
nal suit, n Justify the imprisonment"
In the case now under confederation there 10 .