, 1885-07-04
WITH A STRING
DeWaIt Discharged by the Court
and Rearrested.
Full Text of Judge Lacey's Opinion
in an Interesting Case.
The Prisoner viii be Taken to
Denver To-day.

Supreme Court of Wyoming in the habeas
corpus matter Of F. W. DeWalt There
were present, beside the judge, ii. W.
Hobson, United States attorney for Colo
RADIO; A. c. Campbell, United States at
torney for Wyoming, NJ. j. Waldheimer,
and 7. W. Blake, counsel for DeWalt;
I. JEFF. Carr, United States marshal for
Wyoming, and a few other persons. The
judge rendered his decision in the case,
the full text of which is given herewith
as follows
Er-pdrte Frank w. De Walt.
This is an inquiry. under a writ of
hsbeas corpus, into the legality of the
imprisonment of Frank W. DeWalt. who
is now confined in the penitentiary in
this territory. The following are the facts
developed on the hearing.
The prisoner was prosecuted in the
United States District Court for the dis
trict of Colorado, upon an information
charging him with certain criminal viola
tons of the National Banking law; the
charge being founded upon section 500
of the revised statutes, There was a de-
murrer to the information. one cause as
signed being that the said information
was without warrant and without law.
That the proceedings herein should
have been by indictment and not by in
formation.
The demurrer was oyerruled. and a
trial by jury vas had, resulting in a YER
dict of guilty. Upon this verdict the
prisoner was sentenced tn confinement in
the penitentiary in this territory for the
periodsf ten years
1t rs proper that l should first in
quire into my own jurisdiction in the
premises.
The judges of the supreme court of
this territory have power to issue writs
of habeas corpus in all cases of imprison-
ment.
Organic Act Of Wyoming. section 9. re-
vised statutes relating to District of Co
lumbia, section 76l. One tried and con
victed in violation Of the constitution may
assail the judgment on habeas corpus be-
fore any federal judge or Judges exercising
federal jurisdiction, authorized to issue
that writ at the place Of Imprisonment,
and if the record on the hearing shows the
violation, the prisoner will lie discharged.
This results from the very terms of the
statutes above cited, but see also Church,
on II. c., section 362. And in such case
it matters not by whom the prisoner is
held. FIX parte Kenyon ), Dill 3s5.
The writ of habeas corpus is a writ Of
right and hence the duty of a judge with
reference 10 its issuance is c~o-extensive
with his power.
1t has been urged That the District
Court Of Colorado, by its ruling upon
the demurrer, passed upon the ques-
ton Of its Jurisdiction to try the pris
oner for the causes charged upon the
information and without indictment,
and that the present judge exercising
a coordinate jurisdiction cannot now in
quire into that question; that it is res
adjVdicafa so far as | am concerned. And
IN support of this proposition | am re-
ferred to certain cases where Judges
under a writ Of habeas corpus have re-
fused to inquire into the suficiency Of
al indictment to charge any crime.
But this refusal was not necessarily
based upon the view that the Judges
whose %interposirion was asked was CO.
ordinate in power to the court under
whose sentence the prisoner was held.
The Supreme Court of the United States
has repeatedly refused to assail the
suficiency of an indictment to charge
any crime where that question was pre-
sented on habeas corpus, although the
court convicting upon the indictment
was an inferior court. Tx parte Parks
90, L. s. %; ex parte Watkins 3 Pet.
1872.
Aud yet the supreme court did not hes
itate, on habeas corpus, to assail a iudg-
ment upon the question here raised. Tx
parte Wilson, Chicago Legal Neies of
May 9, 1885.
1t is perhaps true that | cannot here
inquire concerning any Of the facts which
go to make up jurisdiction, if such facts
have been found to exist by the court
under whose judgment the prisoner is
confined; but, Notwithstanding the con
%clusion Of that court, / may inquire
whether, granting the facts, there was
juris LECTION. To this extent every judg.
ment, where the record shows the facts
constituting the Jurisdiction, is open to
collateral attack. If authority were needed
in support Of this proposition the decision
Of the supreme court in ex parte Wilson
supra seems to me conclusive. In that
case the district court for the eastern dis
trict Of Arkansas, by the very act OF en-
tering judgment, held that it had jurisdic-
ton and er-necessitote that the crime there
charged was mountainous. Yet the
supreme court decided that the Judgment
was open to collateral attack upon a writ
Of habeas corpus.
There remains for consideration the
question whether the crimes charged by
the information against the prisoner are
infamous or mountainous. In the case
OK parte Wilson supra, the supreme court
of the United States gives this definition:
"a crime punishable by Imprisonment
for a term of years at hard labor is an in
famous crime within the meaning Of the
fifth amendment of the constitution. "
This definition is binding upon me, both
on account Of the high authority Of the
court which gave il. and also becanse nv