The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1877-10-28
s.in.s D.v. winch OCCURS on Thursday next,
HENDERSON AND WHISKY BILL.
The Governor In Doubt as to the signing
of their Death Warrants.

The Governor In Doubt as to the signing
of their Death Warrants.
The Governor is greatly disturbed in regard 10
his duty in dsposing Of David Henderson and
"Whisky Bill" who are under sentence OF death
for murder. These men were convicted on in
presented by the Frank Grand Jury.
impaneled BY Judge Braughn when acling a.
Judge OF the Superior Criminal Court by appoint
ment Of Judge Atocha. They were convicted,
however, and sentenced, sitter Judge Braugbn
had been appointed TO the jndgeship by Kellogg,
subsequent to the death Of Judge Altoona.
II may be remembered that Judge Atocha,
being unable to attend to the duties OF his Office,
believed himself authorized by the act creating
the Superior Criminal Court to appoint & Judge
dd Interim to supply bis place on the bench VI
that court, and under this in appreciation OF the
law appointed Judge Braughn 70 the position
Judge Braughn,. under this appointment,
assumed the duties OF the Office, smpanelsd
Grand Jury and proceeded TO the trial OF oil
cases brought before the court. He acted under
the appointment OF sudge Altoona, merely sup
when he was regularly appointed TO the bench Of
the Superior Criminal CURT by Kellogg, to sup.
ply the Vacancy ocoasioned BY the death OF Judge
Atocha. Prior to the 12th Of April he was mere.
Stocha bnt astar that data his vestitnre or
authority waa by appointment and commission OF
the Governor OF the state,
Judge Brauphn's authority was auestioned,
and the legality Of the Grand jury impansled by
aa,;ed IL . numhar ri o.sas, which w.ra an
nealed 10 the Supreme court, and upon which
tiaoiaions we're provoked. In the frat OF these
cases, that OF the Stats against Pete Phillips,
convicted on an indictment found by the Frank
Grand Jury-the one impaneled by Braughn---
and before BrauQhn. while acting as Judge ad
Interim, and by him sentenced TO term OF Ave
years IN the penitentiary, the Supreme Court de-
cided that ''the statute No. 12a of the General
Assembly of 1874, comforting on the Judge Of the
Superior Criminal Court the power to appoint an
attorney to act in his place, ia unconstitutional
because II provides mode of choosing Judges
different from that prescribed in the constitu.
tiou," AZ A. 663.
In this case the indictment, trial, conviction
and sentence were ail secured while Judge
Braughn was acting on the appointment OF
Judge Atocha, and the question exists in the
Governors mind whether or nor the decision Of
with Illegally iii the acts OF Judge Braughn
prior to his cou,miss ion BY Kellogg on the twelfth
Of Auril. 1874. Henderson and "Whirky Bill"
were indicted by the Grand Jury. but were tried.
convicted and sentenced subsequent e the twelfth
mission Of the q vernon.
Tie nasa nf henderson yuas snnoalad m Tho
oronnd that the Grand Jnry which found the bin
~ indictmant WAS impanaled nv Juioe Brauuhn
Atncha. The supreme Gourt. In Affirming tie
Judgment Of the lower oourt. said:
"fhe pounsel for defendant has urged the court
TO take iudlcisi cornzsnae Of the fact that re the
time the Grand Jury which found the Indictment
il thia casa was inipaneIed .JnaOe Rrauuhn was
nresidinr in the oourt. and that he was not then
ikndue Of the court' Int was acting nnder an an-
moi ,tment from Judge Atochs. the uresidug
fudge. This we cannot do. We have no legal
mesna Of knowing whether Judge Atochs nTe-
s,ded In his court that day or not even IL the
Grand .Jnry was impsnsled bef,re Judge
Hranahn wss legally appolnted iudoe Of that
courf Nor can we tell when the Grand Jury was
impaneled. The fact which the council wi hes
in Ia assume as true should have been shown in
some legal wsv bv this record ii il be- 8 faet.o
Th;s INDIGNANT amnlv decides that the nourt
cor,id not take iutlicial cornizsnce Of the facts
irnpnrninr the authority OF Jndpe Brauphn to i'm
panel the grand iury. upon which the appeal was
taken, and amounts 10 nothing else than an en-
tons to the venue must be made on the iarst
day Of the term. otherwise they are considered "a
Waived. This Judgment was rendered on d sus-
pensive appeal, but previous TO this Henderson
had applied for writ of habeas corpus, which
had been refused by the Supreme court. In
passing upon this application the court said:
ssThe only illegality complained of liz the selec-
ton OF the Grand Jury by q. Il. Braughn while
he acted under the appointment from Judge
Atocha and before his commission by the Gov
ernor. Can this illegal ty be inquired into after
conviction and sentence by the writ OF habeas
corpus2' The court said not, and that habeas
corpus was not the proper remedy. 1.-THE writ Of
habeas corpus was never designed to be writ OF
error. by which the errors or irregularities Of
final judgments could be revised
To summarize, Pete Phillips, convicted of q
minor ffense. was liberated upon the ground that
Judge Braughn was not the lawful Judge of the
Superior Criminal Court prior to April IL, 1874,
and that none Of his acts prior to that date are
entitled to any credit whatever; but Henderson
and whisky Bill" are not discharged, though
convicted on an indictment that has been decided
to be Of no effect, upon mere technicalities of
practice. In the first instance it was decided
that habeas corpus was not the proper remedy,
and 10 the second that the court could not
take judicial cognizance OF q fact not presented
in the pleadings. These are circumstances
which may well perplex conscientious official.
and the Governor is very positive in bis
determination not to sign the death war.
rants of these men unless he shall become q n.