The New Orleans daily Democrat., 1878-06-06
JUDGE WHETAKER's DECIsEON.

EiHOr DPm0rdt-Your editorial remnrkg in
your issue of the fourth instant on Judge Whit
aker's decision In the matter of Saloy are ad-
mirabe and conclusive
My health and want of time prevent me from
sending you communication as elaborate as II
should be on some important points In the
question at ISSUE ] must, therefore, content
myself to call your attention to them. being
confident you will. at once recognize that they
are conclusive. and can be argued to advantage
by your able pen. which is so we'll used to de-
fend the sacred rights Of the people,
The points are:
l. Ce1tiOrGr'i can only be invoked when the
party ngRri9Ved has no redress by appeal
O. The writ OF CertiOrHTj can only be issued hv
q court having appellate jurisdiction and Of
last resort.
3 In Louisiana the only court of last resort in
criminal matters Is the Supreme Court Of the
State. That court alone has the power In Crtmi-
nal matters to issue the writ Of CpriiOrnri
4 The Superior Criminal Court Is not an ap-
pellate court. a court Of last r. sort It IL n
court Of limited and inferior Jurisdiction since
its rulings and judgments are subject to revision
by the Supreme Court of the State. and can be-
by that court led. reversed or affirmed.
g. In criminal matters. and in all cases Of mis-
demeanOr. the State is, plaintiff and the accused
defendant: the defe, dant can take an appeal
but not the State-plaintiff. The State having
no right to appeal If an appeal did lie. cannot.
when no appeal lies; invoke the writ of ce,tior-
N
6; The right OF obtaining the writ of ce1'tiOrnri
IS different in civil and in criminal p1 Ocepdlngs
In civil casee both the plaintiff and defendant
are entitled to obtain it. Not so In criminal
cases or mi -demeHnOrs the defendant only has
the privilege. because the State (pIaintiff) can
not. as before said. appeal and disturb the judg-
ment OF any court of competent Jurisdiction In
favor Of tho party accused.
In the caso of Agosti it is a criminal pr0secu-
ttOn: the State, for the people, laintiff, and
AgOsti the accused, defendant It cannot be
made civil case, because tho infnrmpr and
witness, Kelly. ia entitled to part of the fine:
but If 1t be civil case. then the Third District
Court of New Orleans. having jurisdiction of
appeals in matters I'D to 800, and being In such
cases the court Of last resort would alone have
power to issue the writ Of CertiOrari to compel
the recorder to exact the fine Of $25 to be paid
by Agosti. and to pay over one-half Of the same
to Kelly, the infOrmer
The imprisonment of five days for non-pay-
mont of the fine Is merely partial revival Of
for debt and not q penalty
have no doubt that il the whole array of an.
thOrities cited by Judge BrauRhn was carefully
scrgtinized. it would be found that, in all the
criminal cases quoted by him. where the writ of
cP'ttorGri was granted and maintained, it was,
in every case at the instance of the defendant
and not on the demand of the plaintiff. the
State or sovereign.
| am sorry | cannot hunt up authorities
which are abundant to sustain the points given.
Some lawyer can ea8ily Go it.
Respectfully. JUSTICE
New Orleans, June 4, 1873.