The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1898-12-27
APPEAL TO JUDGE BAKER
HABEAS CORPUS PROCEEDINGS IN
THE NESBIT CASE.
Claimed the Circuit Judge, WeIbOrn,
Ignores Indeterminate SEN
tence Law.

The case of Calvin Nesbit, of Cynthiana,
Posey county who is now under sentence
at the Reformatory for seduction, has at
last been brought into the Federal Court
for settlement. Frank b. Posey of Evans
Vile, filed the case by mail Saturday night
and the papers were received by Judge
Baker yesterday. The complaint, which is
a habeas corpus proceeding, states that Mes
bit should not be longer confined in prison,
for the reason that he was sentenced by
Judge Welborn, of the Posey Circuit Court,
for four years, which is a fixed term. and
therefore in direct violation of the statutes
providing for the enforcement of the indie
terminate sentence law. 1t is claimed by the
attorney for Nesbit that the passing of any
sentence other than that provided for by
the statutes violates the constitutional
rights of a citizen who is accused of crime,
and therefore should be set aside The rea-
son for filing the case in the Federal Court
rather than one of the circuit courts of the
State is not thoroughly known, and the
complaint furnishes no information on that
point. In point of fact, there is much doubt
felt as to the right of the Federal Court to
pass upon the question at ala and when
Judge Baker was asked to suggest a prob
able reason for the case having been filed in
his court he said that that point was one
on which he did not feel at liberty to talk.
I'm fact" said he, that is one of the two
questions 1 will have to decide. l must first
satisfy myself that can properly pass upon
the case and then determine the other ques-
ton at issue"
Deputy Attorney General Merrill Moores is
assisting Judge Baker by looking up au-
thorities bearing on similar cases. 1t is
Al.
only in reality a side issue to the main ques
ton in which Mr.. Posey is interested For
some time after the ndeterminate sentence
law was passed several judges of circuit
courts in the State expressed their opinions
as to the unconstitutionality of the law and
refused to sentence prisoners in conformity
with its provisions. After the question was
agitated for some time many of them saw
their error, or at least resolved to suppress
their own sentiments, and observed the law.
Judge Welborn, however, it is said, refused
to modify his views on this point and con-
tinues alone of all the other judges to ignore
the statute. 1t is at his course that the
for this reason that the case was taken
out of the hands of circuit judges altogether
and given over to the Federal Court.
1t is also learned that contrary to what
was at first given out with regard to Mes
bit, his sentence under the indeterminate
act would have been from one to five years
instead of two to fourteen, as the statute
provides a lower penalty for offenses such
as Nesbit is charged with. Under the terms
of such sentence, therefore, NesDlt should
have been eligible to parole at the end of his
first year. but 1t is learned that a short
time ago Nesbit was implicated in an at
tempt made by several convicts to break
prison and that therefore he knew that any
application he would make to the Reforma-
tory officials for release would be rejected
on that account. He therefore applied to
the Governor for Il pardon and met with
rebuff as stated in the Journal. What dis
position will eventually be made of the case
1t is impossible to surmiSe at this time,
Judge Baker will not consider any of the
points in the case until he has determined
his right to hear and pass upon the case.