The herald., 1897-08-03
STILL IN JAIL
The "Feigned Accomplices," Harris
and Jenkins, Must Serve Time

|
| Fay Harris and Harvey Jenkins. the
runaway accomplices of the Col Tupper
case. have failed to win their liberty by
the habeas' corpus route and are now
ready to appeal their case to the su-
preme court. At the recent trial 1t de-
vloped that neither of these defendants
had had any work for many moons and
were in state of most uncomfortab BILE
| impecuniosity. 1t seems. however as if
they now have money to burn, for their
case is to be appealed. and counsel in the
case, while in every way earnest in his
| effort to serve his clients, is not to be
presumed to be giving his time and abil-
ity out of mere love for humanity.
Attorney Earl Rogers represented
Harris and Jenkins yesterday before
Judges Allen and Smith sitting in banc,
and the hearing wa disposed of in about
five minutes.
Counsel first offered the affidavit of
Attorney Walter M. Rose, wherein he
swore to having subpoenaed the defend
ants to attend the Tupper trial in behalf
of the defense, in evidence; and also the
attachment issued from the court for
their arrest. Mr.. Rogers argued that a
commitment for contempt is essentially
a criminal proceeding, and that in such
cases citation is essential, and an affi-
davit upon which that citation to ap-
pear is based, setting forth the facts CT
the contempt. In the case at bar cour-
sci contended, these necessary processes $
of court were not Sled until after the
defendants had been produced in court.
The court held that it mattered moth
in, o. NJ ~ hnx or
why Harris and Jenkins were brought
in court; as matter of fact, it ap-
peared they had been brought in as wit
n nesses; being in court, however, the con-
tempt proceedings began when the affi-
davit was filed. and, as counsel himself
conceded, there were no irregularities
from that point. The writ was dis
charged.
A parallel case to this was in the
memory of Judge Shaw, for he made al
lusion to it, in which he himself was tbs
trial judge. One Hreciach was brought
up in department five, in 1892, on tbs
charge of contempt arising out of the
trial of a civil suit. Attorney Horace
Appel had been representing Hreciach
in the civil suit, but upon the day when
his client got up to the neck in contempt
he had gone off to get married, for even
attorneys indulge in that pleasantly
quite frequently, and had appointed At
torney Kinley to take his place in de-
Tending his client. Hrecach persist
emily refused to permit the receiver to
take charge of the business which was
the subject of the action and was arrest
ed, and an affidavit filed against him set
ting forth the facts of his con-
tempt. No process of court issued,
but Judge Shaw inflicted a fine, with
the alternative of being sent to jail
News was sent to Attorney Appel how
his marriage had balled thecase in court
all up, and next day he hustled down
town and got out a writ of ha beas cor
pus and it was heard before the court
sitting in banc. Counsel laid stress
upon the points dwelt upon by Attorney
Rogers yesterday; that no accusation in
the shape of complaint or anything else
had been served upon his client nor any
order to show cause, and therefore Hire
ciach had not had the opportunity to be
informed of the charge leveled against
him. The arguments were protracted
and the supreme court reports of almost
every state in the union were ransacked
to find authorities. But in that case, as
in the later one, the court in banc held
that no process was needed, as the de-
fendant was in the presence of the court
and the necessary affidavit setting forth
the facts had been filed.
In that case, however, there was one
striking difference from the Harris and
Jenkins proceedings. Hreciach was a
rather ignorant foreigner, and what
Judge Shaw wouldn't concede as an act
of legal right he did as an act of grace
and the defendant was restored to lib
erty. Harris and jenkins are, judging
by their actions in the Tupper trial, two
very slippery young gentlemen, and
Judge Smith is well content that they
shall-as far as he is sconcerned-remain
just where they are-in Jail.