Morning journal and courier., 1881-11-24

DOOlftsle and Judge BlydenburSh.
 Yesterday morning at 10 o'clock Walter E. Malley and James Malley, jr., were brought from the county jail to the Superior Court room in the custody of Jailer Stevens The young men wore dark clothing and appeared about the same as when the preliminary hearing was in progress before Justice Booth at West Haven. After the court was duly opened State Attorney Doolittle addressed the court in substance as follows
 If your honor please, yesterday being the first day was out of town for some months counsel for the Malleys withdrew the hG6eGs corpus they had made and made new one to this court. This woman was murdered be- yond all controversy the night of August , last. The coroner's jury heard the evidence and these young men testified before it. The course they took in testifying falsely prolong- ed the investigation at least 8 month. Then they were prosecuted before justice of the peace. That hearing lasted till the latter part of October and they were bound over and committed to jail without bail. Now, they were charged in this case with the crime of murder by the administration of poison. That is an offence punishable with death and not bailable. As I understand it, it is not charged these young men are illegal ly imprisoned, but the writ is intended mere application for bail. Now, hold that this court has no jurisdiction over the mat ter. Section l, page 535, of the statutes distinctly sets forth the law upon this point When the Criminal Court is adjourned then application must be made to the judge who has been holding it. He can take bail be- cause he is judge who can hold a criminal term under that statute The Superior Court, exercising civil jurisdiction, has noth- ing to do with the question of bail. When person makes aa application for bail he farTI in Gnc sion, or to judge entitled to hold that court, or the clerk of that court. But civil court has no power to take bail in a criminal case It is not held, remember that these young men are imprisoned illegally, and it did not look just right the way the writ had been ob- tained.
 Mr. Fox said he had given intimation that he intended to bring the present Aa6oas cor, puS proceedings.
 Proceeding, MT. Doolittle said he thought it strange that the ha6eas corpus should be brought the very day he went out of town. no power in the matter of bail in a criminal case. 1t was not intended that the process in civil causes in this civil court should be interj rjected with any criminal proceedings. The law was very explicit on this point. Moreover, the magistrate who has passed upon this matter has exclusive jurisdiction. call your honor's attention to section 9 of | the statutes, page 533. Again, claim the | accused cannot unite, as in this case, in bring ing writ of hG6e0s corpus. They are l charged separately, held separately and must seek for a writ of hG6eGS corpus separately. | The Legislature has said that where person \ is held for murder he shall not be admitted to bail, and if that is constitutional it puts an end to this case It can do no good for your ! honor to begin hearing in this case that will | last four, five or six weeks. I hold that these proceedings should be brought before Q criminal term of this court and that the ac- cused should be held to appear before the next criminal term, when the State will be ready for trial if the grand jury find a true ! bill, which they will do.
 Ex-Judge Blydenburgh in reply said that l there had been some difference of opinion in the matter but the better opinion was ir favor of bringing the writ of h06eds cOrp1lt before this civil court. The speaker did not ! think it was so that the justice only had juris diction in the matter of bail. This court had full jurisdiction. There is no allegation il this complaint, said Mir. BIydenburgh, of the degree of the crime alleged to have been com mitted.
 | Judge Beardsley interposed to say that ht did not think that necessary.
 | The attorney resumed that he thought tht Justices record was also somewhat defective But one thing was certain and that was tha
 under the Constitution of Connecticut nt party accused of crime can be held withou
 bail unless the presumption is great and thu | proof evident. In this case 1t is claimed tha not even crime has been proved. We ar'
 willing to have your honor take the notes O. | testimony and review them. You will SC, then that there is not such evidence as woult
 make the presumption great or the proof evi
 dent. In the second Parker's Criminal Re l ports, page 570, the court reviewed the evi
 dence and passed upon the question of proo
 and presumption. Again, I read the third O
 Parker's Reports, page 520, to show that tn
 magistrates decision would not be taken a
 final in the matter of bail In this case tn committing magistrate declined to hear al | application for bail, and referred us to tn, ! Superior Court. There can be no question
 but that this court has jurisdiction in thu
 matter of writ of hG6eGs corpus. Thel ! shall come up the matter of whether the ac
 cused are Illegally detained, whether they
 shall be admitted to bail whether exces
 sive bail that had previously been fixed shal l be reduced. Where shall we go if not to tht
 Superior Court? I see no reason why tn,
 court cannot take the testimony the Stat
 will furnish, review 1t and pass upon tn
 question of bail. It won't take long ther
 is a summary of evidence that you can 1ool
 over. If these young men are released ol
 bail and the grand jury indicts them the | will be here for trial.
 Judge Beardsley said he had really no cas
 before him. as judge he knew nothing l about the case. The writ of hG6eGs c07,pu
 called for the young men and they were her
 in court. Waiving all points of law, he said ! I don't see how will have time to hear tn
 case, as this court adiourns next week Thurs
 day. l should have to, in justice to all con l cerned, hear all the testimony to decid whether upon the evidence in the case-th | facts-the accused should be admitted t.
 bail. It is not claimed that there is any file
 gahty. must then hear the evidence anC
 there will not be time to do it. The crimin I o1 0,Nff1 f<,,
 session here unemployed, after these yount men were committed, and yet this matter wa
 not brought up. I cannot give the case thu
 time necessary to review it right on the hee
 of the term, with other privileged, special.
 assigned cases to come up. You are asking
 me to do that which, under the circumstances is impossible, and I must, therefore, continue | the case.
 | MT. Fox arose to correct the impression that he thought Mir. DoolittIe had tried tt l convey with reference to the action taken by counsel for the defense, but Judge Beardsle, interposed to prevent the explanation, saying that 1t was not necessary and he did not thinl the counsel had acted otherwise than in gooc faith.
 This closed the hearing and shortly aftel the Malleys were taken back to jail
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