The New York herald., 1879-03-18
THE COURTS.
Appeal in the "Red Leary" Habeas
Corpus Proceedings
TREATY OF WASHINGTON
A Woman's Marvellous Escape
from the Smallpox.

Tho conundrum, What shall be done with John
alias RED" Leary is still puzzling tho courts. The
lawyers propounding the conundrum, not satisfied
with bewdering the brains Of the judges of tho State
courts took the to the United States District
Court. The lattor court has courteorsly refraned
from giving its answer to the conundrum pending
the decision of the Supreme Court, General Term.
pending an appeal from the decision of
Judge Davis dismissing the writ OF habeas corpus
taken out on his behalf and stay Of proceedings
granted by Judge Donohue ON writ of certiorari.
As is well known. Leary is charged with being i'm
plicated In the Northampton Bank robbery. The
case up yesterday for argument on this appeal
before Judges Brady and ingalls,. Leary being rep
resented by Messrs. Agernon s. Sullivan and Peter
Mitchell. and District Attorney Phelps and winches-
ter Britton appearing in opposition.
Mr. Sullivan in his argument hrst cited the "Arti.
clcs of Condensation the provisions of the United
States constitution and the Act of 1898 in regard to
the extradition to any state of person charged
with crime He insisted that the flight Of the per-
son claimed from the demanding jurisdiction must
bc proven satisfactorily in the manner prescribed by
the Act of 703 That In order necessarily to cstab
ish such Hight i must appear not only that crime
demanding State. but that the person whose sur
render is claimed was actually within such jursdc-
such thing as constructive flight. but that it
must be an actual and positive heeing
state to escape its justice. He discussed ut
longth the proofs as to identity and then commented
on the hearsay evidence introduced IN the case. Ho
contended that the mandate of tho Governor is am
bgnous and defective and that does not set forth
crime under the laws of the State of
He urged in conclusion that however clear it may
seem that Leary may have acquired an uncnyiablo
notorety the proverbal regard of courts for the
rights of tho humbest and vilest citizen will con-
hnue to secure to the most apparent criminal rcndi
tion conviction according to the established forms
of Justice. fssflff se
Mr.. Britton who made the answering argument,
contcnded that the return setting forth the warrant
by which tho prisoner is hold il sufficient; that this
warrant is the document which authorizes the ar
rest aud detention; that the preliminary steps
which led to issuing tho warrant are part OF the
authority by which the prisoner is held; that it is
desired to contest the jurisdiction authority Of
the Governor Of the State OF New York to issue the
warrant 1t must be done by alleging, by way
OF traverse, the facts wanting to constitute
such jurtsdction; that such warrant was sufficient
to hold Leary; that it is not lawful in this proceed
ing to inquire whether in fact the prisoner is o
fugitive from justice from the State of Massac
nor whether he committed offence. the offence
with which he is in that State charged that the ques
ton OF identity was correctly determined by Judge
Davis and that taking into consideration all the facts
and tho laws applicable to them the decision Of
Judge Davis should be affirmed
At the close OF the argument tho Court took the
papers, reserving its decision.