The Wichita daily eagle., 1895-09-08
II is FOR BLOOD
CITADEL OF PROHIBITION Is
STORMED IN REEDS COURT.

Even Judge Tucker and Tiger Bill
Claimed to be Acting Doubtful Author
ity-Judge Reed May Hold the Law Un-
constitutionai-Some Very Pointed Ohio
Decisions are Quoted-Tiger Bill Shifts
Danger in the Air
When Judge Reed said yesterday
at 10 o'clock, Il am now ready to hear
the habeaS corpus case" there was a
fair sized audience present and all the
chairs inside the railing and some of
the jurors chairs were occupied by
lawyers.
Jailor Charles Horner delivered Con
kelleher on the writ. Colonel Nicho-
las Bird and r. r. Vermilion appeared
as his counsel and Assistant Attorney
General Campbell for Chief Massey.
An answer for Chief Massey was filed
in which he claimed that Kelleher was
not his prisoner and evidence was taken
on this point.
The contest over this point consum-
ed the entire forenoon and when the
point was raised that Kelleher had
been committed by Police Judge Tuck
er and that he was now held by the
flce Tucker was commanded to appear
in court with his docket and court
adjourned until half past one to give
him time to appear.
When court convened in the after
noon Judge Tucker put his docket in
evidence and Sheriff Royse claimed the
defendant was in his charge and that
he had delivered him on the writ of
habeas corpus and all Irregularities
in regard to the arrest were named
and the attorneys proceeded with their
arguments.
Kelleher was put on the stand and
testified that ne was arrested about 3
p m. last Wednesday and taken to
pohce headquarters where he was held
until the habeaS corpus was served
on Assistant Chief Sutton. The assist
ant attorney general claimed that he
was held by Assistant Sutton under
a warrant as deputy sheriff but Con
Kelliher swore that it was Chief Mas
Sey who arrested him.
Chief Massey also testified that he
arrested Kelliher on suspicion and that
after his name on the police records
was the entry, Hold for Chief" The
after proceedings were had after Chief
Massey went to Topeka to appear in
his own habeas corpus case and he
could tell nothing of it of his own
knowledge only that he found the writ
OF habeaS corpus in his Office when he
returned.
There was a good deal of satisfaction
manifested at the close and Judge Reed
announced that he would take a day
or two to consider the authorities sub
nitted as the crowd present seemed to
be OF the opinion that Messrs Bird and
Nermilion had gained a victory of a
very decisive nature
The first argument in the afternoon
was made by Colonel Bird in which he
undertook to show that the prohibitory
law under which Con Kelliher was ar
rested was unconstitutional in that it
did not directly or by reference provide
Tor trial Of the accused by a jury.
He proceeded to show that section 10
OF the bill of rights that the right of
trial by jury shall be held inviolate
and that criminal law which did not
provide trial by jury was clearly un-
constitutional and he quoted number
of Ohio supreme court decisions TO
sustain his point and it was not denied
that Ohio decisions have force here as
our constitution was modified after the
constitution of that state
He made the point that when the
constitution provided for the right of
trial by jury that it did not execute
itself and that all criminal laws must
provide for a jury trial and to fail to
do so was a fatal error.
Mr.. Bird also argued that the pro-
vision in the Murray law providing for
the seizure of property without provid-
ing fora jury trial was also a fatal
erro in other words. that section was
unconstitutional.
Judge Reed inquired If the legislature
could not dispense with jury trials even
under the provision of our constitution
giving the right of trial by jury in
such cases as were not recognized by
the common law as triable by jury.
The question he would ask was prohi-
bition of the liquor traffic known to the
common law.
Mr.. Bird held to the position that |
case net recognized by the common
law might be tried otherwise than by
jury and prohibition of the liquor |
traffic was not known to the common |
law but that the violation of the pro- |
hibitory law was made a Inisdemeanor |
and that misdemeanorS were recogniE- |
ed by the common law and persons ac- |
cused of misdemeanors under the COM |
mon law had the right Of a trial by |
fury.
Judge Reed thought it strange that |
uhis phase of the Murray law had never |
before been raised and he asked the at |
torn eys if they were sure that the su- |
preme court had never passed upon IT. |
The attorney thought it never had.
Mr.. Bird here closed the argument |
and he was followed by Mr.. Vermilion |
for Kelliher. He claimed that there |
were peculiar times and that this sec |
ton of the state had been swept by a |
move of fanaticism and that it was just |
for such times and emergencies that |
constitutions are made. !
II seemed to be the policy to attack |
the prohibitory laws at every ina GIN |
able point and Mr.. Vermilion turned |
his guns on the law giving the police |
Judge concurrent jurisdiction with a |
Justice of the peace.
He declared that nobody would read |
The title to this law providing the APP |
pointnent of police commission for |
the government of the cities of the |
first class and get the idea that IL was |
a law to give police judges jurisdiction |
In state cases and allow him by the |
aid of an assistant encouragement to |
harrasS and annoy the citizens of all |
the towns in the country. This was inn
ortant legislation as IL was unconsti- |
tutional because il was not stated in |
the title of the law and ii would have
been unconstitutional If it had been
placed in the title because there would |
still have been two subjects of legisla-
tion and the constitution says there
must be but one in a law.
Mr.. Vermilion said he would now at
tack the tiger in his jungle and he pro-