The herald., 1897-04-17
Opinions Rendered and
the Term Closed
HAS TWO LIVING HUSBANDS
PECULIAR PREDICAMENT NE
CESSITATING A DIVORCE
A Constable Who Sold the Wrong
Mans Property-Rev. john
son Again Defeated

The supreme court met yesterday
morning and finished up the business OF
the term. The first matter taken ur
was the Henry Williams habeas corpus
proceedings, which had been submitted
the evening before. An order was made
that the prosecution be at an end and
the prisoner discharged.
In an opinion handed down, the court
says: 1.-THE prisoner seeks his dis
charge upon habeas corpus and shows
the following facts: To the Indictment
charging him with forgery he interposed
a demurrer, which demurrer was by
the court sustained, with leave to the
district attorney to file new informa-
tion.'
Section zoos of the penal code pro-
vides that the allowance of demurrer
ie a bar to another prosecution for the
same offense, unless the court, being or
opinion that the objection on which the
demurrer is allowed may be avoided by
a new indictment or information, directs
the case to be submitted to another
grand jury, or directs a new information
to be filed
1--WE have frequently been compelled
to comment upon the apparent unwill-
ingnees of trial judges to obey the plain
mandate of the statute and their care
lessness in conforming TO the clear re-
quirements of the law 1t would have
heen extremely simple for the court IL
this instance to have adopted the Ian
guage of the section, and If in its view a
new information should have been filed.
to have directed the district attorney ac-
cordingly. But instead of so doing and
without warrant in law, the court mere
ly extended leave to the district attor-
ney to file such information, leaving the
decision of the matter, as to whether or
not such new information would be filed,
to rest entirely in the discretion of that
office.
"It cannot be held that a permissive
order granting leave is equivalent to a
mandatory order commanding the per-
formance of a given act Under the or
der of the court directing the filing of
new information, the district attorney
for his failure to do so would be guilty
of misfeasance or non-feasance, and
would be punishable accordingly Under
the permissive order given by the court,
he would violate no duty and be amen
able to no punishment If he should never
file new information.
1T cannot be held, therefore, that the
order here given is equivalent to the
order which the statute contemplates
should be made. AS the only order
which the court could properly make
was an order directing a new informa-
ton to be filed. and as the order in fact
made by the court cannot be considered
equivalent thereto, 1t follows. under sec
~
the prosecution is at an end and that the
prisoner must be discharged"
The opinion is by Justice Henshaw,
and concurred In by Chief Justice Beatty
and Justices Temple, Mcfarland and
Harrison, Justice Van Fleet dissenting.
An opinion was also handed down in
the case of the people against Belardes.
charged with a felony. affirming the
judgment and order of the lower court.
The opinion says:
1.-THE only question presented by the
defendant in support of his appeal here
in from the judgment of conviction is
that the evidence was insufficient to JUS
tify the verdict of guilty. Without anal
yzing the evidence in it's details, it is
sufficient to say that the bills of excep-
tions show that there was sufficient evil
dence presented to the jury to justify it
in finding that the defendant had COM
mitted the crime with which he was
charged Whatever differences might
be drawn by the jury from the testimony
of witnesses and any discrepancy there
in, or from any apparent conflict or in
consistency in their statements. was ex-
clusively for the determination of that
body. Their conclusions in these partic-
ulars are not subject TO review in this
court"