Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1880-05-13
KEARNBYs CASE.
The Argument before the Supreme Cour
Continued-The Propositions OF
the Petitioner


continued-The Propositions OF
the Petitioner
The Kearney habeas corpus hearing was
resumed before the Supreme Court at 10 A. NJ.
yesterday. Not so large an audience was
present as on the first day, but the Court
room was well filed nevertheless. There was
some littleimprovementi in the character of the
Spectators as manifested by the countenances
ranged back of the bar.
| Judge Lake resumed his argument for the
people, citing numerous authorities in sup
port of the positions Heretofore assumed by
him, and reported in the sketch of his argu-
ment given yesterday in the RECORD. MON.
D. j. MURPHY
Followed upon the same side, with other au-
thorities upon the same points made by
Judge Lake and himself previously. He
added that, in his view of the matter, the
| judgment of the Police Court is all
the Supreme Court could consider, and that
no means exist by which it can inquire into
the question as to what the misdemeanor
| was, or under what law or ordinance it arose
or the conviction was had. He said that
Section 1886 of the Penal Code provides that
a defendant shall be remanded on the hearing
| OF writ OF habeas corpus in certain cases,
and one of these is when the defendant is
held In custody by virtue of Judgment of
any competent Court of criminal jurisdiction.
| Section 1887 provides the cases in which
! prisoner may be discharged on a writ of ha-
beas corpus, but it qualities itself by saving
| that the discharge shall be made in such and
such cases, except as provided in Section
1856. This exception he took to be concus-
i've of this case, and he urged the point upon
the close attention of the Court, for defend
ant is held under the judgment of a compe-
tent Court of criminal jurisdiction.
JUSTICE M'KEE
Asked if the prosecution held that where a
| defendant is convicted of misdemeanor in
competent Court of criminal jurisdiction for
the violation of city ordinance, which was
set up in the complaint, and the defendant
convicted and awarded judgment Hereunder,
that the Supreme Court cannot on habeas
corpus question the ordinance or judgment,
even if it be admitted that no lawful ordinance
ever existed?
Judge Lake replied that the prosecution
did so fully to that extent, as the Police
Courts jud gment is conclusive, and it must
be assumed that the jurisdictional question as
to the validity of the ordinance was there de-
termined, and that determination is finality,
from which defendant had, however, an aD-
peal that was sufficient and easy remedy.
THE PETITIONER.
MIR. Barbour, in reply for petitioner said
that he did not take issue with the prosecu.
| ton in its statement that habeas corpus can
| not be used as a writ of error, but he did
| claim to attack the judgment of the Court,
because the Police Court had no jurisdiction.
The commitment here is a general one, show
| ing a violation of law amounting to a INSIDE
meanor. Now, it does not show what kind
| of misdemeanor it was. There are certain
indictable misdemeanors of which the Police
Court has no jurisdiction. Therefore defend
ant is entitled to show what kind of INSIDE
meanor was claimed to have been committed.
and to do so he attacked the jurisdiction OF
the Court, and asked leave to bring in proofs
and show that the Police Court had no juris-
diction of the person of defendant, or of the
subject-matter of the proceeding. Where
the complaint discloses that it is based on a
private ordinance the Court may examine
into the complaint, and that he asked to be
done.
PRIVATE OR GENERAL STATUTES.
Mr. Murphy said that the ordinances are
not private, but public statutes, and the
Court must take judicial notice of their exist
ence, and of the fact of their having been
properly passed. Being ordinances of
municipality, the Courts of the municipality
are bound to take judicial notice of the ordi-
nances.
Mr. Smoot hoped lis associate would not
admit that the ordinances are general, for he
held they are not, and that they must be
proved, and that in this case the ordinance
was proved, and this Court must assume that
the Court below required it.
Mr.. Murphy said that in 1856 the ordi-
nauces in San Francisco were only bylaws,
and had to be proven, but by subsequent Act
the violations OF the ordinances were made
public offenses, and that carried them out of
bylaws, and the Courts of the municipality
will take judicial notice of them.
Mr.. Barbour-Fight it out among your
selves, gentlemen. The ordinances, unlike
general laws, had to be published in paper
and files preserved "for the use of the
Courts, says the law, and it is that resort
defendant asks this Court to take. He then
argued the proposition that the Supreme
Court may examine facts extrinsically to de-
termine the jurisdiction of the Court. The
| Code provides that the Court or Judge on
habeas corpus may examine papers and facts
to determine whether a prisoner is lawfully
held Any other construction would be in
| violation OF the spirit of the law. In this
case the commitment says kearney is held
| for six months imprisonment and is fined
| 81, 900. Now, the paper does not impose any
Imprisonment for failure to pay Che fine.
| Mr. Murphy-It is fine Gaa imprisonment.
Mr. Barbour-Why, then, are the words
one thousand dollars in the commitment?
| Why should they be put into a document ad-
dressed to the jailor unless the imprisonment
and the fine have relation to each other
| He then proceeded to examine the cases
cited by Messrs. Lake and Murphy, claiming
that they do not maintain the doctrine of
| finality of the judgment of the Police Court,
and incidentally he said were he the District
Attorney he would be ashamed to object to
the offer of prisoner to prove that absolute
ly no such law existed as that under which it
is claimed he must be held. The very object
of the writ of habeas corpus is t, determine
whether Court has exceeded its jurisdiction );
yet it is held by the prosecution that The
Court below itself judges of that, and that its
judgment is a finality. If so, then the writ
of habeas corpus is farce.
AFTERNOON SESSION.
The Court took recess at 12:45 until P.
NJ, when Mr.. Barbour resumed his argu-
ment. He confined it largely to review of
the cases cited on the other side, in which he
claimed the papers in all the cases were before
the Courts and all the records under examina-
ton. He claimed that all the California
cases show that the California Courts have
exercised the power and right to examine on
habeas corpus into all the proceedings in the
case prior to the issuance of the writ. He