The Sunday morning news. [volume] (Jersey City [N.J.]) 1886-1891, 1891-12-13
HflllNGEIl' % FREE.
AZ Least Lawyer Peshall
Says He Will Be-
fore Long.
70 PETITION THE FEDERAL COURTS
me Lawyer has Precedents Which
He Claims Viii Secure the
Negroes discharge.
70 PETITION THE FEDERAL COURTS

Negros discharge.
Mr.. Charles S. PeshaIl in his usual fell
cltons manner wanted to wager yester-
day that he would secure the release Of
Edward Hallinger. the negro wife MUIR
derer. from jail before long, and that the
ex- baptist preacher and prize fighter
would never grace hanging match with
ms presence as the principal actor for the
murder Of his wife. Iasked Mr.. Peshall
how he was going to secure that result,
and he said:-
As soon az Hallinger is sentenced
again shall apply to the United States
courts for his release upon the grounds
that be y subject OF Her Majesty the
Queen Of Great Britain aud that he is nm
lawfully restrained Of his liberty by
Ihhries birdsail. ltis popular error,
~ which Sheriff MePhIiiips seems to
have fallen, that Hallinger is In his Gus
bouy, out the law only gives the Sheriff
the custody OF prisoners in those coun-
ties where the jaiier is not appointed by
The Freeholders.
IL SUBSTANCE OF THE PETITION.
@The next ground for my petition will
-
Imprisonment OF Hallinger is a Judgment
aud sentence Of death of the Hudson
County Court of Oyer and Terminer,
which are contrary TO the Constitution of
the United States. of New Jersey and the
treaty with Great Britain. 1t will then
ket forth the facts OF The application to
JudKe Green for a writ of habeas corpus,
MS denial Of the application. the appeal
70 the Supreme Court, aud the dismissal
or that appeal for want of prosecution
upon the application OF the Prosecutor OF
Hudson County.
The petition win next set forth that
dallinger's Imprisonment Is illegal In
that he was convicted of murder aud SEN
fenced to death without the Intervention
81 q jury and due process of law. Then
follows prayer for the release of the pc
fitioner.
The other appeal which I allowed TO
DO dismissed was made quickly. in order
70 save the mans neck, and | had no
tl4ie 10 look up the record. The applica-
lion was made on the ground that
the statute under which he was
allowed to plead guilty, and
was then sentenced to death
wss unconstitutional. Now, II upon that
petition and pleading the Supreme Court
Of the United States had agreed with me
Thar the act was unconstitutional ana
void, then upon application Hallinger
could have been reindicted at common
law, tried and perhaps convicted. 1t is
pretty wellsettled principle OF law that a
niau Is never In jeopardy upon CONVICTION
under an unconstitutional law. Or. in
other words. no government would be
willing 70 admit that it could execute u
man uulaWfully.
n Amnoun{ Ae1Ics EsssAeFED,
1Moy x N case don't plead the
4 ..5uktitn dv5aiity of she statute, and
Z plead that he Is nnlawfully detained
m II a.
Eabsolute nullity, having been CONVICTED
the crime of murder without the inter-
ton of jury or due process of law.
"A Under this sfate of fact ne is entitled
Fl mis- immediate discharge and cannot be
I led again; or in other words. the Court
Cannot take advantage of its own error,
aud cannot set its own judgment aside
after the term has passed.
II they should attempt to try him
again, his plea would be thai he had here
tofore been convicted Of the charge, aud
the record could be produced TO snow his
discharge. The record shows that only
Two OF the Judges heard the testimony,
The TWO must have told the other two for
all four have served his death warrant.
There Is another curious statutory
i provision In the State which says that one
convicted OF any offense may go TO the
Court Of Error and appeal as matter of
l4uh W titC LII - lHat EDuNttt6Q VI
murder The right OF appeal Is abolished,
and If Que is convicted OF murder illegally
or otherwise he can only get there as a
matter of grace upon permission of the
Chancellor. Hallinger is entitled to his
freedom according TO my theory and le-
galIy Innocent, and consequently should
not be required TO suffer the further indig-
nifty Of praying upon his Bonded knees to
the Chancellor for a writ of errer In a
trial for murder the proceedings must
show by the record that all the require
inents Of law have been strictly complied
with.
PGEcEpENTs IN OTHER STATES.
.tBishop 10 his treatise says:-srhe law
delights Ia the life. liberty and happiness
ofthe subject. and deems statutes which
deprives him OF this and his property in
sense as odious. In Hailinger's case
the records snow conviction without
these requirements.
ssNo one doubts that the Court acted
in good faith, In New Hampshire
plead guilty as Hallinger did. The
Judges heari the evidence and then
ordered the prisoner to States Prison.
They then retired TO consider their verdict
and while the man was on his way 10
prison miles from the Court House, these
him guilty OF murder In the first degree.
n6fsfied the clerk and told him to an
nounce 10 the people their verdict and
sentence of death.
an Alabama in the case of Mullins VS..
the State the Supreme Court says
sBut there is one error shown by the
record. for which the Judgment must be
reversed. It does not aDpear that the de-
PENDANT was asked by the Court if he had
anxfbiug to say why sentence should not
be passed upon him. while in felonies as
defined by our statutes this Is neces-
sary.'"