Butler citizen. [volume] (Butler, Pa.) 1877-1922, 1884-01-23
Case of John Smith, Esq,

by the DcIOW, tuhcu nun VIC ~
burgh papers of last week, it will be
seen that an application has been made
for the release of Esquire Smith, o.
this county, now confined in the Penl
tentiary. An argument was had OIL
Saturday last. but no decision yet ren
dered on the question raised, the nature
of which will be gathered from the
following
From the Pittsburgh Telegraph
j. N. Purviance, Esq, of Butler, ap
peared before Judge kirkpatrick with
petition sworn to by ]. Smiley Smith
of Butler county, asking the Court fol
writ of habeas corpus. The appli
cation was founded upon the following
allegations That John Smith, father
of the petitioner, is now confined In
in the Western Penitentiary, in Allie
gheny City. That be was convicted
of purjury last April and on July l6
1858, was sentenced by Judge Bredin
of Butler county, to pay fine OF 5000
to undergo Imprisonment in the Peni
,entiary for one year, and to be forever
disqualified from being witness IL
any matter of controversy. That nc
time for the commencement OF the sen
tence was specified, and John Smith
was not incarcerated until December
4. 1888; that petitioner is informed by
the Warden of the Penitentiary that
the Imprisonment of his father dates
from his arrival and confinement in
the penitentiary, consequently, under
the sentence John Smith would be
held in Imprisonment until the 4th day
of December, 1884, which would be
contrary to the act of Assembly oi
March 81, 1860, which provided in re
gard to expiration of sentences
"That no convict shall be sentenced by
any court of this Commonwealth to
either of the penitentlaTies thereof for
any term which shall expire between
the 10Th of November and the 10Th
of February Of any year"
The petitioner, believing the imprls.
onment of his father to be illegal, asks
for q writ ofhabeas corpus in order
that the body of his father may be
brought before the Court to test the
legality of his incarceration. The
Court ordered the writ to issue, and
fixed the hearing for Saturday next.
From the Dispatch Of Sunday
There was a hearing yesterday
morning before Judges kirkpatrick and
White in Common Pleas Court No 2,
in the matter of the petition of John
Smith, by his next friend and. son,
j. S. Smith, for release from the
Western Penitentiary whera it was
alleged that the prisoner was illegally
restrained of his liberty.
The petitioner claims that be was
sent to the penitentiary December 4,
and was informed by Warden Wright
that his term wonld not expire until
December 5, 1884. Under the act OF
1860, providing that no prisoner shall
be sentenced for any term that Will
expire between the dates of November
Is and February Is of any year; the
petitioner claims that his sentence is
illegal. The date at which his term OF
sentence was to commence was not
fixed bv Judge Bredin, and while he
was sentenced in July he was not re-
moved to prison until December !,
which, it is alleged, would make the
term of one year expire between No.
vember Is and February l5. s Between
the time Smith was convicted and the
time be was taken to the penitentiary,
he had taken a writ of error to the
Supreme Court, and obtained bail pend
ing the decision. The Supreme Court
sustained the lower court, and ordered
the sentence imposed to take effect.
Smith was, on December last. taken
to the penitentiary, since which time
his friends have been trying to get him
out 1t is not asked that the time
between July and December be allowed
to count on the sentence, but that he
be released on account of illegal con,
fnement under the act of 1860.
This act, Warden Wright, of the
penitentiary, says, was intended tC
prevent prisoners to be thrown ou'
during the winter season after serving
the term imposed, end should the pris
on combinations throw the expiration
of the term within that time, prisoners
are privileged to remain until it passes
The case was argued for Common
wealth by ex-Judge Charles. McCan
dless, and for the defendeut by Colone
Thompson, General j. n. Purvianct
and District Attorney Snyder, all o
Butler. The Commonwealth claimed
that the dsfendent delayed the com
mencement Of this se4teqce. which, hat
it been carried into effect whsR pro
nounced, would not have fallen be
tween November Is and February l5
and therefore had not the redress tina
be might have could the delay have
been laid upon the Commonwealth
The defence was simply based upor
the act of 1860 for release. Afte
hearing the argument the Court tool
the papers and reserved its decision
The case has raised some interesting
ques ions, and others will probably b.
raised by the decision.