New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1875-12-05
COURT RECORD.
SATURDAY, DECEMBER 4, 1875.
supreme Court.


Presen.-All the Judges.
REHEAR1SGs REFUSED.
No. 1885. State OF Louisiana vs. Peter
Maxwell.
No. $685.. Miss De La Ferr;er vs. success.
sion of England.
No. 5S03. City of New Orleans We. Metro
politan Loan and Savings Bank.
No. 5S0l. Same VS.. Peoples Bank
No. 5499. Succession of Thomas q. Pat
terson.
No. 1854. Henry Tallmadge vs.. Jonn VIII
liams.
No. 5i29. Mechanics and Traders Bank
VS.. Metropolitan Loan and Savings Bank.
HABEAs CoRpUs.
State of Louisiana vs.. u. R. Henderson,
Under sentence for murder. Writ of habeas
corpus, the execution being postponed 10
December 81. Attorney General Field, for
the State, answered by peremptorily ex-
| cepting to the petition; alleged that the
court was not authorized to hear and deter
| mine such matters and that they are not
| such as would authorize discharge. The
sheriifs return was that he produced the
| prisoner as by him detained by virtue OF
| judgment, sentence and decree of the Su-
periOr Criminal Court, and by a commit
ment of Eugene Staes, police magistrate of
| the Second Municipal Court. The counsel
| for petitioner filed extracts from the min
AtCb VI tHt CupCiiUI SOuIl. giving
| record of impaneling OF the grand Jury and
| the appointment OF the Hon. George II.
| Braughn. Attorney General Field fled
| record of conviction and sentence in Su-
| perior Criminal Court, and commitment by
| Justice Staes Time was granted petitioner
| 10 file writ.
Attorney General Field argued the court
was asked to 90 farther than any court had
ever done. In the case OF Tweed the court
had, on writ OF habeas corpus, reviewed
| the proceedings of the lower court. This
| had been severely criticised by Charles
O'Conor. This court was asked to do more
than that. 1t was asked to do on this writ
what it could not do on appeal. To under
| take il would unsettle the whols law OF
| habeas corpus. The organization OF the
| grand jury can 70. be inquired into. be-
| cause the defendant has waived that priv
ilege. He can not bring it before an appel
| late court. The objection must be made at
the proper time. No Judgment can be
| given; tie panel Of the grand jury can not
| be quasLed. nor the prisoner discharged.
| If, admitting for the sake of argument the
| grand jury WAS Illegal, the prisoner waived
| the defect by not oblecting at the proper
time. If the case were here on appeal, and
the exception had not been taken at the
proper time, the objection could not be
| urged in this court. 1t can not, therefore,
| be raised on an application OF habeas cor
| pus. Chief Justice Marshall, in the case OF
| Tobias Watkins declared he could not go
| behind the judgment. Objections should
| have been made before Judge Braughu was
commissioned. He, when appointed, could
| have vacated the proceedings. His SEN
| tence was that OF a legal court, no objec.
ton having been made Granting that the
| grand jury was illegal, the judgment stands
| against all the world, Only renewal of
| the judgment can change it. and that can
be done only on appeal, and there is no ap-
| peal The judge was a legal one at that
time, certainly, and there are cases here on
| appeal.
| Justice Howell said ne would like 10 hear
| from counsel on this point. The province
| of the writ of haheas corpus is 10 set a
| party at liberty who is Illegally detained.
If it be found that he is detained By judg-
ment in due form By court of competent
| Jurisdiction, can that Judgment be set aside
in this proceeding, and the court order a
new trial, or must the applicant be set at
liberty!
| Chief Justice Ludeling said: The Attor-
| ney General comedies, for the sake of argu
| ment, there was no grand jury, and that
there was no judge at the time of drawing.
The question is, can this court 90 behind
the record. The Attorney General claims
| that at the time of the trial there was a
legal judge and jury. How is the statutory
provision relative TO challenging the grand
| and petty .juries at the proper time to be metz
Granted that they be Illegal. does the fact
entitle the applicant 10 his liberty when no
| objection was made,
Counsel for defense cited C. p 800 and
1923. Continued TO Wednesday, December
s, 1875.
| Superior District Court.
State ex rel A. D. Bougere VS.. Louisiana
| State National Bank.-Mandamus refused.
Superior Criminal Court.
| MTSTpr,r
State vs. Frank Murphy-Arson. Indicted
| November IL, 1874, for setting fire TO the
Excelsior distillery OF S. w. Hammond, No.
% st. Ferdinand street, August %, 1871.
| SENTENCED.
Joe Raphael, convicted November % of
| burglary at the residence of DR.. j. Holt,
No. 457 Baronne street, September -, 1879.
| Ten years.
| William Green, convicted November 10
| of burglary at the residence of Mrs. Charles
Jones. corner of Louisa, and Craps streets,
July %, 1875. Fifteen years.
| First District Court.
| MISTRIAL.
State Va. Kitty Mccoy, Emma Smith aud
Mary McClellan.-Petty larceny.
| INFoR,tATIoSs.
William Wagner, entering, etc. William
Gaining, petty larceny.
|