The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1888-02-05
GOING TO JUSTICE HARLAN
Coy and Bernhamer's Attorneys Again
Raise the Issue of Jurisdiction.
Writ of Habeas-Corpus to be Applied For.
But the Opinion Is the Convicted
Men Must Go to Prison.

The transfer of the questions arising in rela-
Bernhamer to Washington, for which city John
6. McNuts left yesterday morning 10 apply to
Justice Earlan for writ of error, and also to
institute habeas corpus proceedings has not
changed the prevailing opinion that the con-
victed men will have to go to the penitentiary
Friday afternoon the prisoners and their attor-
neys were aware of the failure of the mission
of Green Smith and John W. Kern in Chicago.
but for some reason they treasured the informa-
ton as closely as if the going before
Judge Harlan meant the bringing into
shape legal resources that would not just
permit publicity. Attorneys and prisoners were
extremely mysterious. but there evidence
of pushing the preparation of papers. Late
that night Coy. as lively and talkative as if the
sentence applied to the attorneys rather than to
himself. came down to the clerk of the Grand
Hotel for few sheets Of writing paper. There
an acquaintance asked him if he had heard from
Chicago. 1--WE have not" replied the little
boss of Marion county Democracy, but we ex-
pect to shortly. am busy preparing papers
and have dozen clerks at work to get them
ready by morning" 1t was these papers j. G..
McNutt carried to Washington, where District
Attorney Sellers has also gone.
The refusal of Judge Gresham to hear the Pc
titon, as he stated in q telegram to Mr. Butler,
clerk of the United States courts, was because
the prisoners attorneys again raised the ques-
ton of jurisdiction. He regarded that as the
one important point presented, and as Justice
Harlan had already passed upon it, he did not
care to enter into il.
Attorneys Kern and Smith returned from
Chicago yesterday. and confirmed the informa-
ton in their telegram of the afternoon before.
Mr.. Smith said they did not 60 before Judge
Gresham until they heard that sentence had
been passed. They then applied tor q stay Of
proceedings and writ of error, but the Judge
refused to consider the application, IS he
judicial insubordination, as Smith repre-
sents him as saying, for him to
take up the question of jurisdiction
since Justice Harlan had already decided that
matter He advised them to go directly 10 the
Supreme Court This, we saw was the best
as well as the only thing to do" said Smith.
But Judge Gresham went further. He author
lied Mr.. Kern to telegraph Judge McNutt that
he might use his name in applying to Judge
Woods for stay OF proceedings. Whom the
answer came back that Judge Woods
astonished." In regard to this statement it is
well to bear in mind that the attorneys said they
did not 60 before Judge Gresham with any
application until the stay of proceedings was re-
fused, tho motion for trial overruled and
sentence pronounced If Mr. Smith is correct,
then Judge Gresham must have advised them
his name for stay. This would not be
REGARDED as good practice. and Mr.
smith evidently seeks In this statement
to let his side of the case down easily Mr..
Smith further said that Judge Gresham wrote a
personal letter Justice Harlan urging him to
grant q stay of proceedings. Mr.. Smith repre-
sents that the judge concurred with him and
MIR. Kern in their view of the case. and that he
expressed desire TO pass upon the points if he
could do so without placing himself in position
OF antagonizing the superior decision OF Justice
Harlan.
But with al this roseate coloring of their mis-
sion. no one of the attorneys expecte any other
result than that their clients will have to go 10
the peniteutiary 1t Is thought they will be
taken to Michigan City Monday evening,
less habeas corpus writ Interferes. In the
penitentiary they will be subjected to the
as to contract work. They cannot be put
this. but they can be utilized about the prison
for doing chores. or doing work for the State.
bshavior viii apply DA and sAf rsaae. se shs
sentence of Coy to sixteen months and
that of Bernhamer to eleven. AS to
the fines imposed Coy can apply for release
he will have to show the United States Commits
sioners in the city where he is detained
prisoner after the time sentence has expired. to
satisfy the fne that he has been detained
thirty days, and that he is not worth more than
$50, except in property. which, by law, is ex-
empt from execution. Inc district attorney.
though, can contest this application, and, if the
release 10 granted, it will relieve
him from tho Judgment of fine. which
he can be compelled to pay whenever the gov
eminent is satisfied that he hes the means to do
so. Bernhamer cannot take advantage of this
insolvent act, as not more than one week ago he
swore in going on a bond that his property
valued at s35. 000 He owns considerable real
estate. has large interests in building associa-
tions and possesses valuable set Of abstract
records.
Coy and Bernhamer remain at the Grand
Hotel. under the close custody of Deputy Mar
shall Taylor. They talk very little, except in
general way, about the trial, and pass no opin-
ion to what will be the result of the mission
to Washington. They are preparing to leave
Monday for Michigan City, and good portion
of yesterday Bsrnhamer. guarded by Deputy
Marshal Stein, spent at the courthouse in look
ing after legal business, which he will leave to
his partner, w. B. Walls, TO settle. He says he
had but three trusts as guardian or administrator.
one of them being that of the Miller children.
His removal their guardian he has appealed
to the Supreme Court He says that il it had
not been for his trouble in the conspiracy case
he would have been able to retire within year,
as his law practice and abstract business have
been profitable.