The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1875-01-09

throe for neglect and one Tor fraudulent actsthat
he GonTth Tor sSSitins SsuSnsnty. three coun e
charge MIN for not doing something. and the fourth
snaI Comment on hereafter II necessary. When
any duty 10 enloined By Law on public oficer
or
perform that duty. whore no snecial provision IL
made for the punishment Of said dslnquency II
right Of challenge. law was passed declaring
what should be q cause OF principal challenge.
ana The Court OF Appeals held in that case that
that was matter which the Legislature should
Grover ad mat the mot
complain because ne still had the right OF cna-
81 e os
cision when they brought II before the Legislature
ana re- sw passed that the Judge who decided
rsls red 70 b. jaSss Grover. Tlast was not
peremptory challenge except Tor one offence.
Now We all know that II there were nlty-nve Of
-Gity-nve sets OF perem piOry challenges THIS is
an error that goes TO the very question OF jurisdc
sn We could sss were re out
error OF jurtsaictionf undoubtedly It would.
Eleven Jurors would not make . Jury such as .
Constitution which declares tSat trial BY jury as
provded for ~ law shall remain invioIate forever
tins csss were smpsSsi!sd Contrary 70 law,
and ON that ground We insist tnat
and snst consequently there was no ground what.
ever for the Judgment that was pronounced.
Lastly We contend that ine Court was no. az COM
these reasons will 60 no further l nave given
You the law ana tine provisions Of me statute.
and ! ask II that Is not enough Here was mis-.
demeanor that was never Drought into the Court
OF special Sessions but originated ID the Court OF
oyer and TermlDer contrary to all law ana prece:
dent With this examination OF our objections
close, simply calling your attention 70 the tact
was iound ia he over and Terminer on the COM
plant Q. private person:
DISTRICT ATTORNEY PHELPS ARGUMENT
Mr. Phelps then proceeded with his argument.
This case has divided itself into two questions:
one as TO the form OF these proceedings and the
questions that may be revie we'd under 1t the
other as the disposition that should he made OF
1t and as to Its being properly before the Court
remarks as to the rst branch Of the case, of what
Is renewable. and MIR. Peckham will make such
msiss Of the Case This is an extraordinary cass
az counsel well remarks; extraordinary In the
Iact that the crimes charged were proved
degree OF Ingenuity and skill counsel has
EXERCISED in his behalf, and, as think, most ex
traordlnary In the method BY which It sought to
review the alleged errors committed IN the Court
below. think It 10 even OF grea or imp0i rance
determine H whether the question: sought to be re.
viewed ts properly revie wable than TO determine
the questions themselves, as they may aiect the
one case, the case OF the prisoner But II 1t Is to
be soemnly adJudicated and the higher courts OF
criminal jurisdiction are to be summary disposed
tine functions Of a Supreme Court Commissioner
on summary proceedings, then the formal process
Ia" we lNr BE- xt ana
snail need more writs OF error or Courts OF Ap-
peal, 30 that the short cut may be adopted with
great ease. and with great relief to prisoners,
VINO viii the, eDy even escape any possible danger
OF new trial, that might be ordered by the Court
in the Court below that the ingenuity Of counsel
may call into question. | therefore proceed to
moi m the relACOr'9 discharge. should
De considered In proceedings In habeas corpus. l
submit, as II appears " ire petition GU which
the relatOr's answer to II, that he was
held and detained by final Judgment
sequently, without any proceedings further, 1t is
the duty OF the Court below to discharge the writ
and me ss @ b ts aIH
an answer or traverse to the return. certain mat
ters complained o. as having been Improperly
have been inquired into If there was case o. de-
tenton under civil process. Bus under The doctrine
| ruling IN this case, aad with which the Court ia
! familiar, 1t seems to me- quite clear that none
OF these questions are to be considered IN this
Of the PROVISIONS Of the forty eighth
section OF tho HaOeas Corpus art 1t provides thax
deer on tne return Of any writ Of nabeas corpus,
may deny any or the material iacts set forth IN
the return, or allege any act to show either that
that he Is emitted to his discharge. which allega
tons or denials shall be on oatni and therenpon
way to near such allegations and proofs as may
be produced In support OF such Imprisonment OF
such party as the justice the case may require.
1t is a familiar doctrine well known to your
honors that under the common law return to
mary proceeding follows the inquiry made. 1hs
answers tO the writ cannot be questioned, cannot
And however false they were the party is without
remeay. But on question OF false return against
sn eI pSrposs Of oosans anything that might &C.
crue to prisoner from being neid and detained
BY false return to writ, wherein he might
aid not exist at all. tbe English stat.
ute provides that inquiry shall 81 be made,
up aliundo In tails case they can show that the
imprisonment was originally Illegal or became
purpose the section or the Haeeas
Corpu, act WAS drawn, providing that patty, Il
he could show that the statement to the return
thing had occurred since the imprisonment
which rendered his imprisonment no longer
legal could have his case reviewed. Tne Oh
ect OF the forty eighth section WAS to provide re-
dress for party restrained OF his liberty WI bout
bOur decided in Is47) there was case where the
relator complained tGat the officer was an inferior
oi1icer and mad acted without Jurisdiction. But
pus. The question was whether the afidavlt was
necessary to give the orfcer jurisdiction and was
the onicer nad to decide for hlmself-whether be
had SUFFICIENT jurisdiction by the warrant. Hav
ing passed upon tnat t1e case might DC reviewed
| b. q writ OF certiOrari or by writ OF error, bu
could not be reviewed 81 q writ OF habeas corpus
There was q case wnerc questionable jurisoic
tion mad been exercised by an inferior
oflcer, the Judge dissenting; and IN the sami
case, Mr.. Justice McCunn dissenting IRON
his brethren, expressly states that he agrees with
them, ''that upon a writ OF habeas corpus, where
the Onncer returns the warrant upon which hi
holds the party, II the warrant Is good upon Ia
vided 1t Is issued from q court OF competent juris
diction." There never has been an instance IL
| on Ssa m no Hahpaa GOruua
has been attempted to exercise the power claimed
for the prisoner IN this case, and no CASE
has been cited by counsel showing such power
But Il It might be claimed, under AM
circumstances under tne forty-eighth sec
ton that the Court can Inquire, 1t canno
to comply with the requirements OF the section
1t says that on the coming IN OF q return the re
lator must, under OATH deny any OF the materia
facts alleged in the return and must allege Othel
facts to snow his Imprisonment was illegal; tina
he was and Is euitied TO discharge. lie has no
cit He has not denlau the facts