The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1899-06-21
ACCUSED No LDIGER
LAUGHS 1t PRISON.


Cont5pued from Page One.
wealth Of Massachusetts,: that he Il not
acQuntased with Charles II. Atilkkan- OF
Chelsea Ia the county Of Sa6ok. who
acted ~ . Juror I'm the case % common
wealth va Richard Murray and Thomas
SccIiins. dat the return q Michael J.
Mefrissey does ros alieSe inst the acts
complained Of were done before q court
Of competent Jurisdiction. nor IL there
any showing that the grand jury who
indicted petitioner were legally Drawn
AMI Snpanelei TO ina said Indictment;
nor does il show that the grand jury
who returned the Indictment were
SWORN 20 perform their duties as grand
Jurors; that the indictment made part
CT the return OF said Morrissey does
not state an oNense punishable under
the laws Of Massachusetts or the laws
OF Washington: nor does il ailsge facss
sufficient TO constitute a crime; that
said indictment IL not properly certified
10 by the cosrt: siA; there II no aliega-
ton In the said return showing THAI
the petitioner herein f1ed from justice:
that petitioner was not IA the common
wealth Of Massachusetts, a. the conclu-
sion Of the trial Of the case Of com
monwealrh Va Murray and Scoilins. and
that no indictment Was returned against
him previous TO his departure from the
commonwealth Of Massachusetts,. nof
had any complaint been dfod against
him; that the alleged prosecution OF
this case ID founded on the statement
made by one David G. Sullivan, wao
was charged with the crime OF perjury
in connection with the case Of common
wealth vs.. Murray and ScoIiins: that the
testimony OF said Sullivan AT the trial
Of Aillikao 10 annexed hereto and
marked - an exhibit, a. is also the
testimony Of said MIllikan who is re-
ferred to IN the indictment found
against petitioner, and that the return
OF Morrixsey does not show that any
sworn evidence WAS produced 20 his ex-
csllency. the governor OF Washington.
as required by the laws OF Massachu.
sets.
Upon the issues presented BY the re-
turn and traverse thereto. a hearing
was had before the Hon Orange JAG
obs. one O. the judges OF the superior
court OF King county. In which judg-
ment was rendered remanding the Pc
titioner to the custody OF the respond
ent as agent OF the commonwealth OF
Massachusetts,. From this Judgment
the petitioner has appealed 10 this
court.
The learned counsel for the respond
ent moves to dismiss the appeal on the
ground that this court has no jurisdic-
ton TO entertain this proceeding. II
is claimed by counsel tina; inasmuch as
the statute relating to haoeas corpus
does not specially provide for appeals
from Judgments rendered therein. such
judgments are not subject 70 review by
this court. Several authorities are cit
ed in support of counsels contention.
among which is Church on Habeas
Corpus. in which IL Is said that the
pretailing doctrine in the state courts
fl the absence OF statutory provisions
Is that q Judgment Femanding a prison
er on haheas corpus is not appealable,
or subteeg TO review, and that the doc
trine of res judicata has no application
10 such a case.
Church on Habeas Corpus. 81 Ed.
section SS6.
II must be conceded that the ma tor-
ity Of the courts which have passed
upon the question have announced the
doctrine commanded for by counsel for
the respondent: but there have been
many cases in which contrary view
has been maintained.
See Ency. OF Pl. & Pr. pp. lV12 and
lG73. and cases cited.
The courts which have denied the
right OF appeal In habeas corpus pro-
ceedings have usually proceed
ed upon the theory that a
Judgment in such case
Is not final In character and that the
petitioner had the right TO exhaust the
judicial power OF the state by applying
successfully to all OF its courts. But
under our statute We think the tudg-
ment in habeas corpus proceedings In q
final judgment. and therefore subject to
review upon appeal. Our statute In re-
lation TO appeals TO the supreme court
is very broad and comprehensive. and
II ia provided in the first section there
OF that any party aggrievei may APP
peal to the supreme court In the mode
prescribed by this act. from any or ev-
cry OF the following determinations.
and no others. made by the superior
court or a Judge thereof In any ac-
ton or proceeding" and it must be
admitted that habeas corpus is either
an action or a proceeding. II il class
ed In the code az q special proceeding,
and the law declares that "a Judgment
in a special proceeding Is a final deter
mination OF the rights Of the parties
therein" Bal. Code, section 5sss:
Laws 1886. page lis. In view OF these
PROVISIONS, there seems 10 De no escape
from the conclusion that an appeal will
lie from such a judgment In this pro-
ceedinx. The motion 10 dismiss IN
therefore denied.
At the time the learned Judge OF the
superior court remandet the appellant
10 the custody Of the agent appointed
by the governor OF Massachusetts,. he
also made an order granting a super
sedeas and admitting appellant TO bail
pending this appeal. Respondent now
moves this court 20 vacate and set
aside the orders last mentioned. and we
are Of .hs opinion that this branch OF
the motion mus. be granted. Neither
the constitution OF the United States
nor the laws OF congress pertaining to
the subject Of extrad3tien. nor any law
of this state. authorizes the giving Of
ball In habeas corpus proceedings In
extradition cases. I. Is true that cur
statute provides tAat the writ may Is
sue tor the purpose OF admitting par
~ 10 bail. but that statute In wholly
fnapplicable 10 cases where party il
I'm custody by virtue Of an extradi,ion
warrant As was well said In the case
81 Elk parte Erwin, : Tex. App IS TO
permit ore arrested as a fugitive from
justice tn go at large upon bail would
he 10 put him in situation to defy
the mandate OF the court and treat its
judgment with contempt"
II this were an ordinary action IL
would rot be set down for hearing