The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1875-03-13


the defendant s brought BY proper process before
plant which Improperly unites various
causes ea OF action. and after Issue thus Joined
such Jud-ment void. provided 1t was not In excess
OF the power OF the Court all the cause OF ac-
tion separately This wlll hardly be pretended.
ana YET II Is the identical question presented AS
regards the Court before which Mr.. Tweed was
tried, 1t had competent jurisdiction over the accu'
cause he was compelled to defend himself In a
single trial against all the accusations that the
proposition can only be established by showing
that the grouping OF offences in single indlct.
proceedings, thus assuming all subsequent action
hereunder Void. To do this 1t must be demon
e thsI 10 order
must accuse OF single and only single crime.
Bur Barns Justice. VOL page 5O2 thus states the
offences, such as burglary and larceny they may
be contained IN one in dictment."
Judge NestbrooK takes up the second point, In
vovlng the constitutionaliLy OF the new Jury laws
or 1872 and 1873. He decides that the question
point-that Mr.. Tweed could only be sentenced to
pay me OF $3.50, because that was the penalty
prescribed for such an offence by a member OF
Board of SUPERVISORS met by the answer that a
court OF competent jurisdiction has decided other
wise; that the fines which it IS conceded could be
for, such Compartment would be proper;
Wnc IS not correct No provision Sufs made cr
furnishing q supervisor by criminal prosecution.
cas oa emps or
neglect to perform duty. The element OF wiu-
ness which makes the act criminal Is absent rom
the enactment. AS to the remaining questions
Judge Wesbrook simply cOncurs with Judge
Daniels. ana In conclusion says :-"In the decision
which we are TO give we are to answer simply
legal questlons No discretion to abate or tighten
punishment IS conhded to us, nor Is there any OF.
errors upon the trial, the improper exercise OF
discretion by the court before which the convlc-
error or abuse OF discretion, but simply desire 70
say that, es to the existence OF any such. no
and Terminer. in discharging the writ OF habeas
corpus and Remaining the prisoner. committed no
error, and t'at such order must DO Affirmed"
JUDGE DANIELS OPINION.
From the return which The respondent made to
the writ OF naoeas corpus 1t was made TO appear
that tue reator was iu MS custody as Warden OF
the Penitentiary upon aaal conviction In the
court OF oyer and Termlner OF the county OF New
by the commitment Itself copy OF which was in-
Guided IN the return, ana the direct statement OF
the fact IN terms IN slch return. The commitment
was, in form and substance, as tie statute re.
CURED 1t should be IN order to justify the imprls-
onment ana detention OF the relat0r. The prOvis-
ion made upon this subject Is that "whenever
sentence OF imprisonment IN county jail shall De
pronounced upon any person convicted OF any Of
fence, The clerk OF the court shall as soon as may
be, make out ana deliver to the sheriff oil the
county transcript OF the entry OF such convection
thereupon, duly certified by such CLERK, which
shall be q sufficient authority to SUCH Sherln to
execute such sentence; and be SHAH execute the
same accordingly. ia Il: -, 5th co., l,O32 E. 49,
The conviction ana sentence OF the re.ator was
entered ana certified as this sec ION required that
II should be. That very clearly appeared from
the copies certined by the Clerk OF the Court, re-
turned to the writ OF nabeas corpus and produced
by the Warden OF the Penitentiaiy on toe bearing.
The sentence as well as the commitment, or
the relator were for imprisonment in the Peniten.
this statute inapplcable to the proceeding, Tor
the Penitentiary mentioned was tne County Jail.
OF County PrlsOn-which Is substantially the same
IN N
sons convicted IN the county OF New YORK
OF offences not punishable by imprisonment
punishable elsewhere. This is rendered very clear
by The provision mace upon the subject by chap
act rccited tnat it was represented 10y the Mayor,
Aldermen and Common Council OF the city OF New
YORK shal hey Mere ereSsng ana had nearly
jail for the confinement OF such Offenders as wore
t. be kept at labor during their inlprison.
established as oue OF the jas OF the
city, ana that the provisions alterward
ments or offenders TO such prison. 1t was then
provided that the building referred TO should be.
come one 81 the as Of the CITY Sy the name Of
henceiorth continue the jan Of said CITY Tor the
confinement ana safe Keeping of all persons con-
fenced to. confinement therein BY any Court or
Oyer and Terms per In such city. That the keeper
sons committed % it in the same man
ner and under the same penalties as
tne SpcrlU OF OJDer counties IN Inc StRtc
ties the criminals committed to them (Laws OF
1sl4, 2Gs-s sections !, 81 These PROVISIONS stiil
In their effect. and taey created the Penitentary
prison Tor the punishment and confinement OF
q cia-s ofienoers convicted OF offences not pun.
1. liable by Imprisonment in State prison. For
that purpose 1t was created a JAN OF the city OF
New YORK 10 winch offenders convicted OF mis-
e tue nI ]a,I 2; the rs county. Inc Keeper
OIL offenders IN the same manner as sheriffs OF
other counties receive and kept the same descrip-
utes went into effect has been 10y means. and un-
der the authority OF the commim provided for
Tscenty enacted nave for re-
ferred TO the prison sti under the special charge
o. the sheriff Of the county OF New YORK as tne
provlsions contained IN the act OF 1914, by which
the Penltentiary was created and DESIGNATED
convicted CT crimes. BY that act 1t still continues
to De the proper prison for persons convicted of
held In the city OF New YORK as well as iu the other
courts mentioned In the law. And While II was
denominated city jail the objects to when 1t was
devoted render It IN reality the city ana county
prison for the purposes designated In the act.
The relaior was formally committed 70 that prison
from the entry made in the minutes OF the
Court 1t appears that he was actually sentenced,
these respects the case presented was strictly
concerned 10 what the act OF 1914 required 1t
Snouu De 10 render tne imprisonment lawful ana
proper II the statement contained Ia the judy
ment record is to be considered no change Will be
produced by IL which can result In any advantage
to the relalOr. BY that lt appears that 1t was ad
judged that he should be imprisoned in the County
jail during the perlods mentioned and declared.
The sigDlf1catl0n Of the terms used as descrp-
tive OF tue PRISON must he determined by the
circumstances under which they were used. The
reator had been C ,nvictcd OF certain mIsdemean-
ors properly punishable by Imprisonment In the
Pcnisentary, and Tor that purpose 1t had been IN
laSiul,y designated as the jail to which such
convicts could DE sent by Courts OF Oyer and Ter
miner held III the county OF New York. 1t must
Tor these reasons have been understood as well as
designed that by adjudging that the r@pat tor should
be Imprisoned IN the County Jail, that the jail was
referred to in which that imprisonment could De
properly made, and that was the Penitenltary.
This conclusion Is very clearly Indicated by the
further circumstance that while the matter was !
still engaging the attention OF the Court
and 10 process OF cOhsumnation the entry
was made IN It's minutes and the
commitment issued expressly designating
tue Penltentary IA the prison Ia which 1t was in
teudcd the relator was TO be confined. At most
the reCOrd contained but q mlsdeRcription. which