The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1886-12-21


Judge weods-What interest has the witness in it,
Mr. SMITH supposed he would have this right
that-as your Honor suggests that he would have the
right decline to be and of course that would
carry with 1t the question. your Honor has sug-
gested that he take the risk and the consequences.
Rpprehended that was exactly the situation That
circumstance, apprehend, might be his commit
ment and then we would of course, be relegated to
our right of habeas corpus.
Judge Woods-It would be still question, even in
haneas corpus proceeding to whether witness can
invoke that question at ALL Is it true that every time
Justice of the peace examining officer upon affidavit
other presented to him made out by himself upon
his own examination must allow witness to proceed
to Investigate the charged If that is true, then every
witness who goes into court could say, Mr. Justice,
! do not know whether you have proper charge or
not and before allow you to swear me want to see
whether this affidavit is sufficient" Your proposition
ged and that the witness and every witness called
in To testify, has right to stop the machinery OF
justice and have question of jurisdiction settled is
there any precedent for such a thing
Mr. Smith, would suppose this If the court has
no Jurisdiction. every act is nulity and void.
Judge the 9aessf6a 81 ae
arises when paper Is presented that calls for the
Judgment OF the court to whether it Is sufficient
paper not, When that court has passed upon the
question for the purposes of that court jurisdiction is
determined.
8Ir. smith-If your Honor rules that-if that is the
ruling
Judge Woods interrupting-Does justice of the
peace, because he holds affidavit sufficient to com
nit
Authorities
Judge woods-suppose he has no jurisdiction in
the matter has the witness right to raise the ques
honl
Mr. SMITH suppose if he has no jurisdiction, it
Is absolutely null and void
Captain Ritter-Even where there is no jurisdiction
witness cannot raise the question.
Judge WoodsIt strikes me ON its face as so palpa.
bly, against good sense and good reasoning that
should be surprised if there any authority for your
position. Unquestionably these defendants have
right TO raise the question of jurisdiction because
has Mr. Perkins or any other witness to do 500
Mr. smith, would suppose every citizen or any
sitizen would have such right.
Judge WoodS-Would any citizen have the right TO
come in eAA stop court2
Mr. Smith mean every citizen called upon to tes'
tify
Judge Woods-Yesif every witness called into this
court and called to take the stand would say, Il
have some scruples in allowing you to proceed until
know whether you have jurisdiction or not.
Mr. Smith-Let me put proposition: Suppose an
affidavit fled before commissioner of this court
Dhareing with the crime Of rape outside Of this
huldug outside of the matters exclusively within
the jurisdiction of the United States.
Judge Woods-Suppose that!
Mr.. Smith-Yes. sir.
Judge Woods-Suppose it was here and was going
with the trial of It.
Mr.. Smith (sming)-wel this court has wider
range of jurisdiction than the Commissioner
Judge sWoods-The Commissioner has within his
own range the same powers that have.
Mr.. Smth--On that ground, if we could subpoena
witness believe with all difference to the court that
any witness would have a right to say, this is
clearly outside Of the jurisdiction of this court that
refuse to testify"
the court but if the court still insisted upon his being
sworn here the Judge wagged his head significantly
do not think he would go any further
SIR. Smith Qaughing)-Except at his own risk
Judge Woods-It Is not proper question for wit
ness to raise. That is how it strikes me. There is no
Hnd to such questions if they may be raised that way
You say as a matter of fact, the defendants have
Fased the question before the Commissioner and he
has passed upon it. What would we come to If every
witness could raise this question: The fact that the
Commissioner is not high court of general iursdic.
tlon does not change the situation because the Com
missioner has power to make these examinations. He
Ia csotked with that authority and every witness who
Is brought forward Into court of course, must be
pected to respond If there Is any authority for such
& procedure as this of course l will yield to the
authority Unless there is do not propose to enter
into the discussion.
Captain Ritter-I can furnish authorities on the
other side and plenty of them if your Honor wishes
Judge Woods My Judgment is whatever I should
DO hereAwouid be advisory to the Commissioner. /
do not think there is any jurisdiction given to to
make any binding order on anybody. one way
another, except this theory, If the Commissioner
has power to enforce his subpenas-I have book
which saysI do not know whether it is we'll founded
prnotzthat the proper course and within the juris.
0ioon Is for this court, the certificate of the
Commissioner to the clerk that the witness refuses
TO answer, that then attachment may be issued
from this court. and that will bring the witness be-
foro this court and he be compelled to answer But
When the Commissioner Horss oh himself has IT, IT,
bubpmnas. that practice does not pre-
vail The authority says, and l have
opinion by Judge Gerkel. of the Western District of
Missouri where he was called upon to advise a COM
missioner under somewhat similar circumstances-ne
only proposed to give advice-he holds that commits
sioners have the authority and authority
cept that had by justices of the peace other
ittnS officers of the State within the jurisdiction in
which he sits. That case in Missouri He held
that the commissioner had right to attach for
eempt IN refusing to answer his subpoena. and, there
FORE he said nothing about what authority the court
would have if the commissioner had none. 1t is clear
L
bo that justice of the peace sitting
examining court has power-lmited power, per-
haps perhaps quite limited, but nevertheless, power
to punish for contempt in refusing to obey his orders
In this respect-and that being so-it seems to me
that is about all have to consider unless you are
prepared to show that am wrong about this other
proposition. Unless you prepared to show that
any witness may say to the Commissioner, 'You
must stop until satisfy myself as to whether you
have iurisdiction"-f you claim you establish
that proposition-I will hear you with pleasure If
you caunot do not believe it is worth while to spend
further time. Of course, there may be way in
which you can bring this question to mo-
Mr. Duncan-We did not suggest this way.
Judge Woods know you didn't. My advice to the
Commissioner is go and make the witness answer
and exhaust his power If he does not That Is say,
fyou have authority upon the other proposition.
Mr. Smith That was question your Honor that
we did not We not looking for an application
ln this form. have been busy as could be upon
another branch of the case. Iwould have liked to
have until tomorrow morning to look this up Under.
standing that if this court has no Jurisdiction
Judge Woods-Even If one court has no jurisdiction
you have right to to another court to find that
out. The Commissioner is court independent of ne
IN this matter except within certain lmits-as much
Independent of me as am of him. And you have not
right to come to NE to find out what his jurisdic-
Eon is.
Mr. Smith-We didn't ask him.
Judge Woods-I know you didn't, and that is your
proposition.
Mr. SMITH understand that that was what was
desired.
Mr. Duncan-We lot here making any technical
questions.
Judge Woods Gnterrupting)-W Whenever the qdes-
ton Of jurisdiction is presented to me will have no
hesitanoy in acting upon it.
Mr. Smith--It was not at suggestion that this
matter was brought before your Honor
Captain Ritter-It was at their suggestion that this
DELAY occurred.
Judge Woods-The simple fact is witness has re-
fused TO answer. and the Commissioner has asked me
90 make order commanding him to answer. | do
not make any direct order. but announce that my
judgment is that he is bound to answer, and my ad
vice to the Commissioner is to enforce answer by
the powers thata given him by the Indiana statute
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