The sun. [volume] (New York [N.Y.]) 1833-1916, 1894-10-11

To THE EDITOR OF THE SuN-Sir: Your
article in to-day's issue, headed Gerry Society
Powers" Is an excellent presentation of the law
as applied to the rights of said society Tor other
societies organized for a similar purpose) over
the children Of the unfortunate or vicious and
the deprivation Of these people OF their relief by
writ Of habeas corpus, owing TO the fact that
the Justices of the Supreme Court cannot re-
view the facts as found by the magistrate. I
have heard our Supreme Court Justices state
from the bench that they regretted their in
ability TO go into the questions Of fact, but that
they were powerless This power, even when
exercised by the Society for the Prevention Of
Cruelty to Children ITO which this community
owes much for the good IL has done), is too vast
and has always seemed to me to be in conflict
with article Of section Of the Constitution OF
the United States, which provides that '"the
privilege Of the writ Of habeas corpus shall not
be suspended" &c. As well suspend or deny the
writ as deprive the petitioner Of any rights there
under by statute;
society are always right and the commitments
just2 Mistakes can and must occur, and II they
stitution. IL must remain there until the legal
time for its discharge, unless the Gerry society
Is s Of
BE n Sse his child or
then 70 the Court q Appeals, to which latter
court the society has the right TO take the case,
for the parent awarding him his child, mean
while that child to remain in the institution to
which II has been committed until the court Of
last resort has passed upon the case Verify
think the ElsrIdge Gerry who subscribed to the
evident: That all men are created equal: that
they are endowed by their Creator with certain
inalienable rights; that among these are life:
liberty. and the pursuit of happiness" would
have stamped such a law as outrageous. The
decision Of an august body the General Term
while the society appeals. There Is no prec-
edent for this. In QUO warranto proceedings
the successful contestant Immediately receives
the ONCE, and must restore IL III the Court OF APP
peals reverses the General Term Of the supreme
Court. In all criminal cases Code OF Grim. Pro.
sec. $3.50 IAN appeal taken by the people in no
case stays or effects the operation OF a Judgment
in favor Of the defendant, until the judgment Is
reversed" In other words, the convicted Grim
inal must be discharged, while the child Is de-
In conclusion, permit me TO call your attention
to an error In your able article This is not "the
only instance in the criminal law wherein the
prosecution have the right OF appealing" Code
of Criminal Procedure. sec. o1S. provides: An
appeal may be taken by the people in the fol-
lowing cases. and no other: Upon judy
indictment. 2. pom an order TO (OD the court
sting the Judgment" And, sec. $40, An
appeal may be taken FROM the judgment Of the
supreme Court to the Court OF Appeals In the
following cases and no other: /, From
judgment affirming or reversing judgment Of
conviction. g. From a Judgment affirming or
demurrer to the Indictment. or ON an order OF the
Court arresting the judgment 3. From final
DISCRIMINATION affecting the substantial right of
The only exception Is in conviction for muir
der In the first degree: there the appeal Is
from the trial court direct 10 the Court OF APP
pea,s' and the defendant alone can take the APP
New YORK. Oct. :.