Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1880-05-12
HALF DAY IN COURT.
SOMETHING ABOUT THE NEW SUPREME
COURT JUSTICES.
Denis Kearney's Habeas Corpus Case
Being Heard Before a Full
Bench-The Argument.

|
habeas corpus, was before the Supreme Court
yesterday from 2 to o'clock For long
time before 2 o'clock, the hour set for the
hearing, the Courtroom was densely crowded.
The audience was composed very largely of
admirers and sympathizers with Kearney.
AN EXAMINATION
OF the closely packed countenances as the men
stood jammed together in the room from the
bar to the wall, was not calculated to inspire
one with exalted respect for the intelligence
or admiration for the comeliness of the sym
pathizers with the cock of the sand lots.
When counsel were engaged in the most con-
else and chiseled arguments expository OF
principles of the law which are regarded as
| the foundation stones of our liberties, these
same countenances were stolid, weary, and
manifested no interest, but when Chtus Bar
bour, Kearney's counsel would make a
declaration that was deemed advantageous to
the agtator, the crowd of sympathizers
would ripple and move and sway like pond
stirred by falling stone. Mingled In the
crowd, however, were few faces that evinced
a comprehension of the proceedings, and by
their intelligence made manifest their sense
of the character of the arguments and the
principles involved. Kearney came before
the Court in charge of Warden Provost OF the
House of Correction of San Francisco. The
defendant tpetitioner) had been convicted of a
misdemeanor by the Police Court of San
Francisco for violating city ordinance pro-
hibiting the use of vulgar and profane Ian
/ guage and had been sentenced to imprison
ment for six months and fine of 81 900. He
applied to the Supreme Court for writ of
HABEAs CORPUS,
Which was granted, and made returnable be-
fore the Superior Court of San Francisco.
That Court remanded him to custody, hold
lug that it could not review the case except
on appeal, and that remedy had not been
availed Of Kearney again applied to the
| Supreme Court, and it issued second writ,
and it was on that upon which he was brought
up yesterday. incidentally, this occasion
| gives opportunity to glance at the members of
the new Supreme Court.
THE JUSTICES.
At o'clock the seven Justices walk into
the Courtroom, first Justice Ross, the Junior
member of the Bench, quiet, sedate and
thoughtful appearing man; then Justice
Mckee, arm in arm with Justice McKinstry,
the former small man, with fine, open and
expressive countenance, his light and grayish
! locks rolled back from a broad and well
nodded forehead His countenance and
whole expression indicate great vitality, keen
perceptive powers and untiring patience
Justice McKinstry, slightly aged since
last he appeared in Court here, is the only
Justice who sat on the bench under the old
Constitution. His tall form is stopped
| little now, and his countenance massive and
compact, indicates that more than ever he
has given up his being to the law, and that
his whole thought and his mind-a legal
storehouse-is upon the business before him.
! He is slightly nervous, and begins to take
notes the moment he is seated. He watches
every counsel, checks and argues with them,
and consults with the Justices on either side
now and then, and seems utterly oblivious to
| the crowd in the Courtroom. Chief Justice
! Morrison next, a man of medium hight, calm
demeanor, and without the slightest nervous
ness manifest. He is carefully dressed and
exceedingly neat in appearance. His coun-
tenance is open and expressive, though placid
and the most full and youthful face upon the
bench-indeed the Chief Justice may be
ranked as the best-looking" man of the
Court. He is quiet, gives close attention to
| the arguments, makes an occasional note, and
| is evidently discussing in his own we'll
disciplined mind every proposition as it is
advanced.
JUSTICE THORNTON
Is above the average hight, is man of good
presence of a clear and speaking counte-
nance, with the scholarly impress clearly
marked upon it. He impresses one as a
student-a common law lawyer of the old |
! type-one who is positive in his convictions,
quick to reach conclusions, and rigid in his |
methods of reasoning.
Justice Myrick takes his seat next He is |
man past middle age, below average size,
gray in whiskers and hair, very mild and |
kindly of countenance, and gives the OBJ
server of his sympathetic features the impress
sion that here is a thoroughly domestic man.
His face speaks of thought, conscientious |
ness, conviction as to duty, aud plenty of de-
termination and ability to do it.
Last on the bench is Justice Sharpstein, |
man of fine build, and undoubtedly, so far as
personal appearances go, one who comes
nearer filling the ideal mold of Judge upon
the bench than any of his associates. He has !
a good head, resolute countenance, just |
| Swallowed by a restless suspicion, which gives
the impression that he receives with doubt,
reasons for himself, and needs to be thor
oughly convinced. His iron-gray hair and
whiskers, his head well poised, his wellknit
frame, his grave demeanor, his close scrutiny
of those before him, go to make him con-
spicuous figure upon the bench.
THE ARGUMENT.
For Kearnev, Clitus Barbour appears for
the people, Attorney Hart, District
Attorney Smoot, Delos Lake and d. j.
Murphy.
District Attorney Smoot opened the pro-
ceedings by stating that the petition set
| forth that defendant was imprisoned under
an ordinance of the city of San Francisco,
which was invalid and by virtue of COM
mitment under judgment which was illegal.
| The return of Superintendent Provost recited
in detail the proceedings under which Kear
ney was tried, convicted, sentenced, took an
appeal. was remanded, and was held in the
House of Correction at San Francisco.
Clitus Barbour, for defendant, objected to
| the return as vague, and not expressive clearly
| of the fact whether defendant was held by
virtue of commitment by the Police Court
or a transcript of Judgment from the APP
pellate or Police Court. An officer must
hold his prisoner by virtue of judgment.
Justice McKinstry-Is not transcript of
judgment sufficient? Is commitment re-
quired or mentioned by the statute?
! Mr.. Barbour said commitment is men
toned.
Mr.. Murphy said the return followed the
rule in ex parte Jones as laid down by the
! Supreme Court of California.
MIR. Barbour-The return does not show
| legal commitment. 1t recites that it is true
and correct copy Of Judgment, and that you
also have commitment.
Mr.. Smoot submitted the original commit
ment.
| NIL MURPHY AOoh Vic N~SS VA "a P"AtS
Jones as In point.
JUDGE LAKE
Said all that vas before the Court is the ques-
ton whether defendant is illegally held, and
not whether the return is in form or not.
Attorney General Hart sSid no objection
could be made to the introduction of the re-
turn of an officer; the simple question is
whether his authority to hold is sufficient.
The Chief Justice said but two counsel on
each side would be heard.
Mr.. Barbour said be should ask leave to
show that there was nothing now existing to
warrant the prosecution and judgment, anti
to do that would offer intrinsic evidence;
that Order COY, amended by 1885, never was
published and was alb initio void. Order 691
was published but four times, he would prove.
He had applied fer subpenas to bring wit
nesses to the fact, but meanwhile had sought
to stipulate as to the facts, but it was refused,
and hence he now applied for subpenas to
bring up the proofs. The american Flag was
the official paper of San Francisco when the
ordinance passed-the files of that paper
wsuld show the facts of publication. An ex-
animation of the Supervisorsrecords show that
the order as passed never was published at all
certain unpublished amendments never
having been published-that publication be-
ing as essential as of the original ordinance
itself He asked for subpenas to the Au-
dtor of San Francisco to bring up the files of