The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1891-09-05
RATHER Queer Law.
That Is To Say, If Mr.
Pesha11 Is Right
About 1t.
AN HALLlNGER BE HANsEDq
Or Can He Go on Securing Writs OF
Habeas Corpus as Long as
He Lives to Juggle
With Justicep

Lawyer Charles Peshall claims that he
has recently stumbled upon an Indiana
Supreme Court decision in case that
directly parallels that of Murderer Hal
linger, whose life Mr.. Peshall is endeavs
oring to save 1t is the case of ssWharton
VS.. the State, 102 Indiana" and reads as
follows:-
"On the eighth day of January, 1885.
Indictment containing three counts was
duly returned into the court below. in
each of which counts the appe liant,
Weibern Wharton, was properly charged
with this commission of one and the
same felony of murder in the FIRST de-
gree.
afterwards, at the same time, the APP
pellant being In custody was brought
into court and upon arraignment for
plea to the first count OF
guilty as therein charged. Thereafter
on the 2lst day of January, 1885, 1t was
shown by the record that "the Court hav-
ing heard the evidence and being sufiici-
emily advised In the premises, finds the
defendant guilty on his plea of guilty
heretofore entered herein as charged in
the first count of the indictment. and as
sesses his punishment as death.
Upon this finding aud no other, on
the same day the Court adjudged that the
appellant, Wharton, should suffer the
penalty of death in the statutory mode on
the 18th day of May, 1885.
ut is very clear that the judgment OF
the Court in this case is wholly unauthor-
lied by law, and must be set aside and re-
versed as an absolute nullity. Section
stitution of this State provides as fol-
| lows
In all criminal prosecutions the ac-
cused shall have the right to public
trial by an impartial jury in the county
in which the offence shall have been
committed. The appellants right to
trial of this prosecution against him is
his personal and constitutional right
which he cannot be deprived of, nor can
he even waive such right unless such
waiver is expressly authorized BY
statute"
MR.. PEsHALL'S CLAIM.
Said Mr.. PeshaIl, discussing the sub
| ject last night:-'.The statute provides
| in Indiana that by arrangement between
the Prosecuting Attorney, the defen-
dents counsel and the defendent HIM
| self, the defendent may waive a
| trial by jury and consent to trial by the
| Court, except where the punishment is
capital
sin this State there is no statute author.
| izing or providing for waiver by the de-
| fendent of trial by jury in case OF homi-
| eide; but the statute provides thai where
/ a man is charged with murder that the
| jury shall determine the degree OF his
| crime. murder by statute being divided
| into murder in the first and second de-
grees, the one punishable by death and
| the other by imprisonment in the State
Prison for not less than five nor more
than twenty years. But in case
the defendant confesses in open court
this Court shall examine witnesses
to determine the degree OF his guilt.
There is no consent or waiver provided
for in the statute. The constitution OF
this State, and of the United States, pro.
vides that tine right of trial by jury shall
| remain inviolate. The Judgment against
| Hallinger is an absolute nullity, and l
| have no doubt that upon investigation
| Judge Knapp and Prosecutor Winfield
| will thank me for preventing the State
or its officers from committing judicial
murder.
"a man cannot waive the right to live.
| 1t many States it is made felony to
attempt ia commit suicide. man can
| be only legally executed in strict COM
| pliance with the law. A man may admit
| In open court taking the life OF anothers
and while the man believes he is guilty
| of murder, he may not be versed in the
| law ana there may be circumstances con-
nected with the killing, or his mind may
| be in such o condition at the time when
the offence was conn m1tted that upon
| the proper presentation OF all the
| facts to twelve men sitting as jury.
| the minds of these twelve men may not
| all become condensed into one conclusion,
I that the man is guilty Of wilful, premedi-
| tated and deliberate murder. A reason
able doubt may be raised in the mind Of
one man out of twelve, and that doubt
| would naturally resolve ITSELF under the
| law, to prolong life. In many murder
cases where the killing is admitted, the
| Judge who presides will often become
convinced of the defendants guilt; yet,
we know in many such cases jury
renders the verdict of not guilty. Since
| Magma Charta the policy has been to ex-
| tend the power and influence Of the jury.
and in nearly every State in this union.
as we'll as in England. the law is now tnat
even in libel suits the jury are made not
only the judges of the fact, but OF the
law"