Daily capital journal. (Salem, Or.) 1896-1899, 1898-10-25
HABEAS CORPUS
Writ Refused BY Judge Boise in the
Fred Brown Case.
The Lawyers are Still Struggling to Over.
throw Those Defective
Indictments.

A petition for habaes corpus was
presented 10 Judge II. =. Boise today
by j, s. Cook and Webster Holmes,
attorneys for Fred Brown who was
sentenced to one year in the penltent-
lary, at ,the October term OF Judge
BurnetLs court for larceny from a
store.
A. n. Gilbert, superintendent Of the
penitentiary, is made defendant, aud
the petition alleges that Brown is. a
prisoner, but ais not imprisoned or
restrained by virtue OF judgment or
decree of a competent court or
tribunal"
The petition then alleges the fatal
defect in the drawing Of the grand
jury upon which the indictments
against darcy ct al we're set aside.
and that the sentence and commit
ment Of Brown was illegal through
the aforesaid errors and mistakes Of
the circuit court IN drawing the grand
jury.
The petition alleges that the said
circuit court 'has refused TO allow
other persons who have In like man
ner been unlawfully indicted and con.
vlcted to appear for the purpose Of
setting aside the verdict
Judge Boise holds 10 substance that
the question whether Indictment is
irregular or not is not proper te In
quIre toto on a writ Of habeas corpus,
IL the tribunal before which the
prisoner was tried and sentenced was
competent then no writ can be
granted. The petition alleges that
the sentence OF Brown was from a
competent tribunal.
THE WRIT REFUSED.
Judge Boise made following entry
on the back Of the petition:
"In the circuit court OF the State
Of Oregon for the County Of Marion;
In the matter OF the petition OF Fred
Brown for a writ OF habeas corpus to
be directed TO A. N. Gilbert, superin-
tendent OF the state Denltentiary on
petition offered by his attorneys j. s.
Cook and Webster Holmes, and IL ap
pearlnR TO the court from the judy
ment entry set forth in said petition
that the petitioner is detained by the
said A. n, Gilbert, superintendent OF
the penitentlary by'vlrtue Of judgment
rendered in due form against him Ia
the circuit court OF the state OF Ore
yon OF the said county, aud IL further
appearing that said court had juris.
dlction to render SAID judgment, IL Is
considered by the court that said pc
tltioner Fred Brown is legally de-
tained by said A. N. Gilbert. II Is
therefore ordered aud adludged by the
court that the application for said
writ OF habeas corpus be denied,
Done at Chambers, at Salem,
Marion county, this 18th day Of
October, 1898"
II. p. BOISE, Judge.
Judge Boise would not express an
oplhiOu as to the proper form OF pro-
cedure to get prisoners released who
were sentenced under indictments
found by the October grand Jury, but
intimated that there was way 20
get at u II the lawyers could hit upon
II. IL is not likely the Salem Grim
inal lawyers will give IL up without
exhaustlng every resource.
THE WITT CASE.
M. E. Poguc will appeal To the
supreme court on the defect In the
grand jury aud other points.
When Judge Burnett asked At
torney Pogue II his prisoner was In
court, and said that he could not
consider any matters with relation TO
setting aside the judgment against r.
w. Witt, IL was much like the story
OF the attorney, who undertook 20
give the court sixteen reasons why
his client was not IN court, about as
follows:
"The hrst reason Is your honor,
that my client is dead"
Whereupon the court replied, "y0u
may omlt the other fifteen reasons"
IN this case the prisoner was in the
penitentlary, and no person on earth |
could secure his presence but Judge |
Burnett, and he would not.
Referring TO the matter Of r.. w.
WiCt having waived his rights, IL was
said today by prominent member of
the bar; "a man cannot waive any
thing in a criminal action. without he |
has either actual or constructive |
knowledge, Constructive knowledge
could only be gained from the record,
but In this case the record shows that
the grand jury was regularly drawn,
and the record was signed by Judge
Geo. IL. Burnett. as a certificate OF lis
verify, when In truth and IN fact the
record was false, Therefore, the prlS-
Oner could not be held TO have con
structlYe knowledge OF a mistake 10
the proceedings OF the court, when
none was shown by the record"
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The Tennessee
This variety OF strawberries has