Daily globe., 1879-01-25


The agony in the Burke case is over. Yes
terday, Judge Nelson rendered his decision,
which both discharged Burke and acquitted
him of censure in arresting and re-arresting
Frank. In anticipation of this event, or at
least, the decision, the United States court
room was crowded before the court came in to
begin business. The lobby and the bar
were filled. Frank was there, pale
and solemn, evidently wrought up
to high degree Of anticipation.
Burke was there, sat near thejudge's rostrum,
and took in eagerly and attentively the judicial
drippings from the bench. When the drift of
tho opinion showed that Burke would in about
ten minutes and half be tree-Burke seemed
to highly approve, and a good many of his
friends acquiesced with mods. Among others
in attendance were large number of lawyers.
They were decidedly interested, as the points
Involved We're new and vitality important.
At 10 o'clock Judge Nelson came into court,
and read clearly and distinctly, to very at
tentive audene, the following
OPINION:
United States District Co,ut, Minnesota Dis
n
NajeaS Corpus, Janua7y, 1879.
Messrs. Rogers & Rogers and MIR. Clough for
petitioner. Messrs Davis, O'Brien 4 Wilson,
and Mr. Cornish Contra.
NELSON j.: It is important an early deci-
siou should be reached. have examined the
papers and considered the evidence. NV i'm
preston on the hearing has rlpened into con-
viction, and | an prepared to announce the
result. On January IS, 1870 James II. Burke
presented OetitiOn for writ of hoos orr
rus, alleging that he is restrained Of his liber-
ty, and held in custody by the sheriff of Ram
sey county, in the State of Minnesota for an
act done by him under the constitution and
laws of the United States.
This act, fully set out in the petition on file
and alleged to be the sole and only reason for
his detention, is the arrest of one Samuel
frank. under and by virtue of the warrant of
Governor Plllsbury, of the State of Minnesota
issued upon the requisition of Governor Cnl-
lon, of the State of Illinois, demanding the
arrest of said Frank as a fugi-
Illinois, accompanied by an affidavit
or sworn complaint charging that he commit
ted a criminal offense in Cook county, to-wit:
"designedly obtaining of goods of another by
false, pretense, with intent to cheat and de-
fraud on or about the Goth day Of August,
1878 in that, said day, Samuel Frank did
in said county and State, with intent to cheat
and detraud Leopold Bros. & Co., doing bust
ness in said county at Chicago, designedly by
false pretense obtain from said Leopold Bros.
q Go: goods and merchandise, &C. The de-
mand OF Gov. Cullom is accompanied bv the
applcatlon OF Leopold Bros. & Co., stating that
frank IS IN ramsey county, Minn. and asking
Tor the requisition and certificate of the
judge OF Cook county that the ends Of iustice
require the return of said Frank Also the an
polntment Of the petitioner, James H. Burke,
IN accordance with the laws of the United
n1ates as messenger and agent to receive from
the proper authorities of the State of Mime
sofa Samuel Frank, and convey him to the State
of Illinois to the sheriff of Cook county.
The requlsltlon and demand of Gov. Cullom
also certihes the copy of affidavit annexed as
authentic and that obtaining property by false
pretenses charged therein is crime against the
laws of the State of Illinois,
writ of habeas corpus was issued unde,
section 753 revised statutes of the United
States, and the sheriff Of Ramsey county has
made return thereto, that he holds the peti-
tioner by virtue OF certain proceedings, war
rants ana commitments attached, to witt certi-
ned copy OF a warrant OF 4 Judge of the dis
trlct court of Ramsey county, commandinr the
arrest on the complaint of G. D. O'Brien, to
wit: That the 9th day of Januarv. 1870
at the city Of Saint Paul, in the county of
Ramsey and State of Minnesota, one James 81.
6urke, then and there being, did without law
tul authority and wilfully and nalciouslv. and
with force and arms aud with wrongful in
tent, to wit: with the intent to extort money
from one Samuel Frank, & = + cansed said
Frank to be seized and taken out of said State
and confined him against his will with the de.
sign ana intent to extort money from him.
etc. Also certified copies of warrants Of com
mltment by the judge Of the municipal court
of the city of St. Paul.
The petitioner files replication that the acts
alleged in the complaint and warrant of arrest
annexed to the return Of the sheriff, and which
constitute the supposed offens", were in truth
and IN fact the same set out in his petition
On the hearing testimony has been intro
filed and the warrant issued u 'bbpiplaihe bv tbe
district court IF Ramsey county. and also
tor the purpose Of showing that the petitioner
intended to abuse the warrant of the executive
OF Minnesota to take Samuel Frank ont of tha
State. not for the purpose of delivery tn no
tried for the crime of which he is accused
lhls latter testimony consisted Of converse
tlons between the petitioner and Frank when
IN his custody, and statements and PROPOSE
tlons made to the counsel of Frank after he
had been discharged from custody by o. writ of
habeas corpus and rearrested, for the purnose
OF allowing him to proceed peaceablv and
without molestaton to the State of illinois
with his prisoner. A certified COPY of the
records of the county court of st. Croix county.
Wisconsin, IS. also introduced in evidence.
showing the discharge of Frank from the ems,
tjdy of the petitioner by a writ of haheas
corpus issued by the Judge of that court. in
the return to which writ the petitioner pre-
sented the requisition of Gov. Cullom. of
illinois, and accompanying papers and the war
rant OF Gov. Pillsbury, of Minnesota, author
lzing his arrest, which are set up in his neti
ton here as a justification of his action.
The questions to be determined in this case
are First, Was the petitioner protected bv the
warrant Of the executive of the State of Minneso
ia authorizing him to arrest Frank, issued on the
demand OF the executive of the State of ILL
nols' and accompanying affidavit, charging
hln with committing an offense which was
made crime by the laws of the State of
Illinois: Unless some act was done under s.
not authorized by the warrant this proposition
does not admit of argument.
Ine law only obliges an officer to look to his
warrant and obey it, if regular and valid on it's
face, and issued by person authorized to issue
warrants OF that description, under certain
circumstances. The jurisdiction of the execn-
tive OF Minnesota to issue a warrant is not
denied, but it is asserted this warrant was pro
cured IN bad faith, aud the petitioner intended
TO perVeTt the remedy and serve other pur-
poses !he petitioner is only the agent ap-
pointed by Gov. Cullom, of Illinois, to receive
ana deliver Frank, the alleged fugitive from
Justice, and the proceedings were initiated bv |
the authorities of that State, and not by him. |
Admitting that the statements and declara-
tions of the petitioner tended to show that in |
his opinion, which is the most that can he
claimed for Them, Frank was arrested bv a |
requisition for the purpose of getting him
INTO custody, 50 that he might be
readily :arrled to Illinois with view of per-
vertlng the remedy. We must assume, also
that the authorities of the latter State co1nm;t'
TED trick and deception. although the execn-
tive action, and all the proceedings. are nrima
facle evid ence of their regularity and legality:
and further that if the proceeding anterior to
the issue or Gov. Pillsbury's warrant, in the
may not execute it, and if he does he is guilty
of the crime of kidnapping. The opinion Of the
agent cannot overcome the presumption of |
which attaches to the PROCEEDINGS