Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-12-12
THAT nHOSSv CASE.
Wirth Wins Point-He Is Admitted tc
Ba and Goes Home for Trial


Ba and Goes Home for Trial.
The Wirth ha6eas corpus case was resumed
yesterday morning at 10 O'clock before Judge
Wilkin.
Counsel for relatoY, Wirth, submitted their
traverse to the return of Sheriff Russell to the
writ.
Thereupon counsel for Sheriff Russell fled
reply to the traverse.
The traverse was in substance and in import
the same as stated in yesterdays GLOBE.
The reply affirmed that the court was not
empowered to inquire into the matter beyond
the facts relating to the legality of the pro-
cess of law upon which the arrest was made,
| The court could not go back Of the warrant
| and inquire into the guilt or innocence of the
| accused. As to the matter of admitting to ball.
the answer held that the statute was peremp-
tory, and that the accused could only
| give bail to the court issuing the process Of
| arrest. In conclusion, it was commended that
| the accused had to be remanded to the custody
of the sheriff of Polk county,
BY these series of objections to the traverse,
the only legal issues presented were those
anticipated in the GLOBE of yesterday, as fol-
| lows:
''First-Can the Judge, under the writ, en-
quire into the guilt of With as collateral
proposition, which the relator claims to be
secondary, under the ALLEGATIONS of conspiracy
raised in the petition for the writ?
| Second-Can the judge allow bail, in case he
refuses to entertain the proof offered in the
| first issue stated!"
| MR.. HoLL1NsHEAD's ARGUMENT.
Mr. Ed. Hollinshead, counsel for the sheriff,
argued the case at length. He presented his
| objections, and cited many authorities to sus-
| tain his view OF the case. To all intents and
| purposes, The argument was repetition of his
line of argument presented on the previous
day, enlarged and sustained by legal authori-
ties: In conclusion, he held that in no event
| could the court go back of the warrant and in
stilute an INJURY into the guilt or innocence
| OF the accused upon the original charge.
MIR. ERw1Ns ARGUMENT.
Mr.. w. W. Erwin replied for the relator. He
| stated he was free to admit the propositions
submitted by opposing counsel in general
sense. But claimed that the reason and SUBJ
| stance on which the petition was issued alleged
a conspiracy to deceive the justice ordering the
| arrest, and to pervert the forms of law to
| means OF injustice. And that the question of
guilt or innocence of the relator under the
charge IN the warrant was only incidental to
the charge of conspiracy and kidnapping con-
tanned IN the petition and traverse. He con-
tended that IT 1T be entertained by the court it
| should be received only as evidence to fully
| corroborate the conspiracy to spirit the relator
away. Counsel claimed that the writ of habeas
| corpus was a writ Of right untrammeled by
precedent, and must be adjudicated upon by
the court upon the circumstances of the indi-
Vldual case alone. He then stated what he
| affirmed could be shown beyond all reasonable
doubt, that the facts attending the arrest, from
the issuing of the warrant to the arrest consti-
tuted conspiracy. In conclusion counsel
stated il the court was trammeled
by precedents in its action under the
sacred writ, in cases entirely unlike
| the one at bar, and where no conspiracy was
alleged, then the court, which by grant from
| the people, was the custodian of the unlimited
| power of inquiry and relief, would by it's own
action abrogate and nullify the right itself. If
habeas corpus was ever struck down 'twould
| be by the cowardice of Judges.
| THE DECISION.
The court in passing upon the matter re-
marked that it was universally conceded
that under writ of habeas corpus
courts had no right to inquire into the guilt or
innocence of the accused before final commit
ment by the magistrate issuing the process,
but In this case it is claimed that the magis-
trate was himself imposed upon by vile con-
spiracy, and the very forms of law which
were made equally for the public and the in
| divldual citizen had been fraudulently per-
verified to means of injustice against both.
The court knew of no precedent by which
| he could be guided in this case, and that the
| counsel had failed to furnish any.
The court held that in regard to the act of
conspiracy only the most conclusive and con-
vincing testimony was entitled to consideration
In this extraordinary demand for inquiry, the
| court stated he should exercise the power of
the court only when convinced of the exist
| ence of aconspiracy.
He held to his opinion that if these
facts as set forth in the petition shall
prove to be true, that the relator has been in
fact kidnapped under forms of law to the utter
pcrversion and prostitution of the forms of
justice, there must exist in the court some
power to strike down the fraud. The court
expressed the inclination to hear the testi-
nony, and proofs to sustain the petition and
| traverse. But as 1 understand, said the
court, that counsel for relator are anxious to
give bail, and avoid the annoyance and expense
Of this investigation, would like to hear from
the counsel upon the power of the court to adj
nit bail under these proceedings"
Thereupon this feature of the case was fully
argued before the court by counsel.
Ihe court after deliberation and examination
of authorities, held that in case the relator
would make an affidavit, an application for
bail under Sec. l, Chap. SO, general statutes.
in relation to giving bail in
all cases, to fortify the application made under
the writ, he would, under the peculiar circum-
stances IN the case, admit the relator to bail.
| This suggestion of the court was complied
with, and the accused, With, was admitted to
bail. The amount fixed upon was $500, and
julius Austrian and Philip Scheig were the
sureties. Accused will appear at next term
| III tha Of oG D<1i