The Evening critic., 1885-01-26
BIGEL0WS CASE.
The Defense Carried TO the United
States Supreme Court
A NEW DEPARTURE.
A Point In the Embezzlement Cases
Which Is Decided Novelty
In Criminal Practice in
This District.

tHN WIN ebp NVlOhOA AAVDoIb OnIlbbyt rs
counsel for Benjamin F. Bigelow, who was
convicted in tho Criminal Court of em.
bezzliDg some thirty odd thousand dollars
of the funds Of the National Bank of the
Republic, and was sentenced to five years.
imprisonment in the New Hampshire State
prison at Concord, went before the Supreme
Court Of the United States and made ap.
plication to present petition for writ Of
habeas corpus in order that the case might
come before that court to hear constitu-
tional point which had been raised.
The necessary permission was accorded
him. 1t Is the same question which was
heard in the Court In General Term of
this District before full bench, aud where
the opinion was unanimously adverse to
the prisoner. Tho petition presented to-
day is sworn to by br. Bigelow, and re-
presents that he is illegally aud without
authority OF law restrained of his liberty,
and confined and imprisoned in the
United States jail in this District by John
s. Crockor, warden of the Jail.
That on the 14th of November, 1882, the
grand jury of this District presented an
indictment in the Criminal Court against
him for the alleged crime of embezzlement
charged to have been committed by him
of the sum of $2,169 on the 10th Of May,
1882, from the National Bank Of the Re.
public he being at the time an employe
Of tho bank; that the grand jury also
found and presented thirteen additional
indictments against him for the alleged en-
be2zling Of other sums of money from tho
bank while he bore official relation thereto,
and all of the indictments being for crimes
of the same class and character and against
him in the same capacity as in the first in
dictment
That the justice holding the Criminal
Court, on motion of the petitioner at the
June term of the court, 1888, lawfully
ordered and directed that all of the in
should be consolidated and tried as one.
Subsequently, on November g. 1888, o jury
was called and duly impanneled and sworn,
and charged with the deliverance of the
petitioner In respect to all the indictments
consolidated, the petitioner. having inter
posed his plea Of not guilty.
That thereupon the United States Dis
trict Attorney for this District, on behalf of
the Government of the United States, ad-
dressed the jury at length, and presented
TO them the facts that the Government ex-
pected to prove against the defendant to
sustain the charges in all and each of the
indictments; that at the close of the ad-
dress or opening of the District Attorney
the Justice presiding in tho Criminal Court
directed recess of the court to be taken,
which was done, and upon the reconvening
Of the court, the Justice, without any law
ful or sufficient cause existing therefor, and
notwithstanding ample time existed for
the trial of the indictments in their con-
solidated form, and without the consent of
| the petitioner, and against his protest, di-
rected that the jury impanelled, sworn and
charged as aforesaid should be discharged
from the further consideration of the in-
| dictments as consolidated, and the order of
consolidation rescinded, which was done.
The Justice alleged no reason for the dis
charge Of the jury and resembling the or
der Of consolidation of the indictments,
excepting that it would require more time
to try the cause in their consolidated form
than it would to try the petitioner under
single one of the indictments. The Justice
thereupon and forthwith ordered and di-
rected that the petitioner should again, not
withstanding his former jeopardy aud
against his protest, be placed upon his trial
upon one of the indictments and before a
jury composed of the same persons as COM
posed the first jury that had been instructed
as TO the facts expected to be proven by the
Government in respect to all of the in
dictments.
The District Attorney elected to try
the petitioner on indictment No. 1891,
and the jury was resworn to try the cause.
Thereupon the petitioner with leave of the
Court filed his plea of dltrefois acquit aud
former jeopardy in bar Of the further prose-
cution Of him under the indictment. TheDis-
trict Attorney forthwith filed demurrer in
behalf of the Government, which was sus-
tanned by the Court, and the plea overruled.
The trial proceeded, and on December 1,
1884, a verdict Of guilty was rendered, and
the petitioner, by the Judgment of the JUS
| tice, was sentenced to imprisonment in the
| prison of the State of New Hampshire for
the term Of five years, unlawfully and
without any authority of law and in con-
travention of the Constitution and laws of
the United States, as he submits.
The petitioner further represents that he
has attached to his petition duly certified
copy Of the Indictment under which he
was convicted and true and complete copy
of the record Of the verdict, Judgment and
proceedings Of the court in the cause, which
he asks to make part of his petition. He
also represents that an appeal was taken in
apt time and in due form of law from the
Judgment to the general term of the Su-
preme Court Of this District TO reverse the
Judgment, but it mas by the general term
been affirmed.
He further respectfully represents
and says that the Criminal Court,
for the reasons given and cause ap-
pearing in the record, had no ju-
risdiction or lawful authority to try him
upon the indictment, and that the dis
charge of the jury sworn aud charged in
the unlawful manner was equivalent in
law of verdict of acquittal upon all Of the
indictments; that the trial of the petit
tioner upon the single indictment, the jury
having been unlawfully discharged from
the consideration of the consolidated in
dictments, was in contravention of the Con-
stitution, inasmuch as II placed the petit
toner twice in jeopardy for the same
0fiense, and the Judgment and sentence of
the Justice was without authority of law
and void, and that the attempted affirm
ance thereof by the Supreme Court of this
District was likewise without authority
and void.
That John s. Crocker, the warden, now
unlawfully and without any authority of
law, confines, imprsons and restrains the
petitioner of his liberty in the Jail, solely
and only by virtue of the null and void
judgment, and that the warden has no
other claim or warrant, process or authority
10 thus unlawfully confne and restrain the
prisoner of his liberty.
Therefore the petitioner respectfully
prays and asks that writ of hRbeas corpus
may DO Issued by that Honorable Court in
| due form Of law returnable according to
law for the purpose Of hearing, examining
and determining in due form Of law the
matters and things alleged and contained
In petition, and that ON the final hearing
thereof tho petitioner may be lawfully dis
charged from confinement and imprison-
ment and that writ of oeriiOrari may be
Issued TO bring before that court so much Of