The Sunday morning news., 1891-12-13
HALLINGHR TO GO FREE.
At Least Lawyer Peshall
Says He Will Be-
fore Long.
TO PETITION THE FEDERAL COURTS
The Lawyer Has Precedents Which
He Claims Will Secure the
Negro's discharge.

o ~~SAae~N - 80
Mr.. Charles S. Peshall In his usual fell
citous manner wanted to wager yester-
day that he would secure the release of
Edward Hallinger. the negro wife mur-
derer. from Jail before long, and that the
ex-Baptist preacher and prize fighter
would never grace hanging match with
his presence as the principal actor for the
murder OF his wife. asked Mr. Peshall
how he was going to secure that resnlt,
and ne said:--
"As soon as Hallinger is sentenced
again shall apply to the United States
courts for his release upon the grounds
that he is a subjecnof Her Majesty the
Queen of Great Britain and that he is un-
lawfully restrained of his liberty by
Charles Birdsall IL is a popular error,
in which Sheriff McPhillips seems to
haye fallen. that Hallinger is In his Gus
tody, but the law only gives the Sheriff
the custody OF prisoners in those coun-
ties where the jailer is not appointed by
the Freeholders.
SUBSTANCE OF THE PETIrIoN,
"The next ground for my petition will
be that the only pretext or cause for such
imprisonment of Hallinger is Judgment
and 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
set forth the facts of the application to
Judge Green for u writ of habeas corpus,
his denial of the application, the appeal
to the Supreme Court, and the dismissal
of that appeal for want Of prosecution
upon the application of the Prosecutor Of
Hudson County.
THE petition will next set forth that
Hallinger's imprisonment Is illegal in
that he was convicted of murder and SEN
fenced to death without the intervent tion
of jury and due process of law. Then
follows aprayer for the release of the Pc
titioner.
"The other appeal which I allowed to
be dismissed was made quickly in order
to save the mans neck, and l had no
time to look up the record. The applica-
tion was made on the ground that
the statute under which he was
was then sentenced to death
was unconstitutional. Now, If upon that
petition and pleading the Supreme Court
of the United States had agreed with me
that the act was unconstitutional ana
void, then upon application Hallinger
could have been reindicted at common
law, tried and perhaps convicted. 1t is a
pretty wellsettled principle OF law that
man is never in jeopardy upon conviction
under an unconstitutional law. Or in
other words. no government would be
willing TO admit that it could execute u
man unlawfully.
NEW TACTICS EMPLOYED.
Now in this case. don't plead the
unconstitutionality of the statute, ana
only plead that he is nnlawfully detained
under q Judgment and sentence which is
an absolute nullity, having been convicted
Nfr h<a nf pr1arst h. fnr
vention of jury or due process of law.
"Under this state of fact he is entitled
to his immediate discharge and cannot be
tried again; or in other words. the Court
cannot take advantage of its own error,
and cannot set its own Judgment aside
after the term has passed.
''If they should attempt to try him
again. his plea would be that he had here
tofore been convicted of the charge, aud
the record could be produced to show his
discharge. The record shows that only
two OF tine judges heard the. testimony.
and yet all four pronounced him guilty.
The two must have told the other two for
all four have served his death warrant.
'There Is another curious statutory
provision In the State which says that one
convicted OF any offense may go to the
Court of Error and appeal as a matter of
right While for man convicted of
murder the right of appeal is abolished,
and il one is convicted OF murder illegally
or otherwise he can only get there as O
matter of grace upon permission OF the
Chancellor. Hallinger is entitled to his
freedom according to my theory and le-
gally innocent, and consequently should
not be required to suffer the further indig-
nifty Of praying upon his bended knees to
the Chancellor for writ of errcr. In a
trial for murder the proceedings must
show BY the record thst all the require
ments of law have been strictly complied
with.
PRECEDENTs IN OTHER STATES.
Bishop In his treatise says:-'Tne law
delights IN the life, liberty and happiness
of the subject, aud deems statutes which
deprives him of this and his property in
a sense as odious.' In Hallinger's case
the records show conviction without
these requirements.
'No one doubts that the Court acted
in good faith. In New Hampshire
which has a similar statute. Almy
plead guilty as Hallinger did. The
judges heard the evidence and then
They then retired to consider their verdict
and while the man was on his way to
prison miles from the Court House, these
judges i'll their private chamber found
him guilty of murder in the first degree,
notified the clerk and told him to an
nounce to the people their verdict and
sent ence of death.
''In Alabama in the case OF Mullins VS..
the State the Supreme Court says:-
"'But there is one error shown by the
record, for which the judgment must be
reversed. 1t does not appear that the de-
fendapt was asked by the Court if he had
anything to say why sentence should not
be passed upon him. while in felonies as
defined by our statutes this is neces-
sary.'"
BOARDING WITH EGAN.