The Tombstone epitaph., 1882-02-20
THE FINAL DIsPOsITION OF
 THE EARP CASE.
The Application for a Writ of Ha-
 beas Corpus and the Release of the

made before Judge Lucas yesterday after noon. Mir. Herring, in behalf of the ap- plicants, read their petition setting forth that the prisoners had twice been before the magistrate and DO charge had been presented to them; that the justice had failed, after the applicants had appeared before hlm, to commit them to the custody of the sheriff, and hence they were ille- gally held.
 J. B. Smith, the magistrate. was sworn and testified that the above facts were true.
 A recess was taken until 4 o'clock, dur ing which time the court considered the matter.
 Upon reassembling, the counsel for the prosecution presented new warrant, is. sued by Justice Smith, but the court de- clared that it was void and that the off, cers were not under obligations to carry out its stipulatiOns.
 The court then discharged the prisoners, after having given the following opinion ef.. OPINION.
 Before the Probate Judge of Cochise
 county, A. T. Ex.parte J. H. Holiday, Wyatt Earp and
 Morgan Earp-Habeas Corpus.
 In this case, petitioners allege in their petition that the sheriff of Cochise county is unlawfully restraining them of their lav ha bate judge, the sheriff makes his return setting out warrant of arrest issued by J. B. Smith, d committing magistrate of this county, on a charge of murder made by Isaac Clanton, as his authority to hold the petitioners in prison. Petitioners, in reply to the return of the sheriff, to show that their imprisonment is unlawful, al- lege, that they had been taken before said magistrate for examination on said charge, at his office at Contention, on the 14th day of February, 1882, at which time the said magistrate adjourned the hearing to February 18th, 1S82, at Tomb stone, and on said day said petitioners again appeared before the said magistrate, at said Tombstone, when the examination was again adjourned 10 future day, but that said magistrate had not made any order of commitment for examination of said petitioners to the custody of the sheriff. Neither does the copy of the warrant attached to the return of the war. rant show any lndorsement of commit. ment thereon. ..
 Sec. 129, procedure in criminal cases, compiled laws, reads: ."If an adjournment be had for any cause, the magistrate shall commit the defendant for examination" etc., etc.
 Sec. 130 provides "The commitment for examination shall be by an indorsemeDt, signed by the magistrate on the warrant of arrest, to the following effect: The within named A. B., having been brought before me under this warrant, IS commit ted for examination to the sheriff of, etc., etc."
 The warrant of arrest is authority to the officer to arrest the party and take him be- fore the magistrate; when that is done, his authority ceases under the warrant, and it is the duty of the magistrate 10 commit the defendant to the custody of the officer by indorsement on the warrant tor allow him baiD and the commitment then becomes the authority of the officer for holding the prisoner. If the magis trate fails to make the order of commit ment, and adjourns his court, the prisoner is as free as any one, and the sheriff is with. out authority to hold him.
 It necessarily follows that the detention of the petitioners is unlawful, and they must be discharged, unless, by the author ity of section p of the habeas corpus act, page 376, compiled laws, the court or judge should think they ought not to be discharged, in which event he shall pro- ceed with the examination. This section gives discretionary power to the judge, and in acting under it he must be gov erned by all the circumstances of the case.
 In this case an affidavit of Isaac Clan ton is offered, alleging that petitioners are guilty of murder, etc, etc. The affidavit would be sufficient to move the discretion of the court to put petitioners on thelr ex- animation if there was nothing else to be considered.
 Strictly speaking, there is no other proof, so far submitted, and 1 do not deem it necessary to receive any evidence to counteract said affidavit. The facts of a former examination of the parties for the same offence, by committing magistrate occupying weeks, the discharge, and the sitting of grand jury in this county since the alleged offence, are so notorious, that 1 feel justified In taking judicial notice thereof. Whether petitioners are guilty or not, 1t is apparent to any reas. enable being that an examination at this time could serve no good purpose. The evidence (deposltions) of the various wit nesses is now in the possession of the District court, and another examination would simply duplicate it, and when they have been discharged by one magis. trate, and failure to indict by one grand jury, it would seem to be unwise to enter into an examination anew at this time. Whilst discharge by a magistrate is not absolutely bar to another exanlnation, yet, unless new evidence should be dis covered or circumstances occur subse- quent to the first examination sufficient to appeal to the discretion of the magIs. trate, it ought to be, in effect, bar, and is a sufficient reason for magistrate to re- fuse second examination. Entertaining these views, it is my judgment that the petitioners be discharged, and it is so ordered J. H. LUCAS,
 Probate Judge.
 ORDER OF DISCHARGE. In the Probate Court of the County of Co.,
 chise Territory of Arizona.
 Tho Torritorv of Arizona unon tho com-