New-York tribune., 1900-08-14
APPEAL TO HIGHEST COURT
NELLY NOT EXTRADITED - COUNSEL
MAKES UNEXPECTED MOVE
IN THE CASE.


Court, came from his summer home at Athens
TO this city yesterday to sign order for the
extradition Of Charles F. W. Neely. accused OF
stealing many thousands of dcllars in connec-
tion with the administration OF the Postal De-
psrtment of Cuba. The order OF eXtradition was
not signed, however and the Neely case is now
more than ever complicated. The latest COM
plications the direct result Of action recently
taken by John y. Lindsay, Neely's counsel, in
applying 10 Judge Wallace Cor a writ Of habeas
corpus for his client. While Judge Wallace de-
MED the application, he issued order re-
manding Nicely to the custody Of United States
Marshal Henkel, pending appeal to the su-
preme Court Of the United States
This appeal was made on Friday last Judge
Lacombe indicated that he had not looked for
this turn in the case, and when he opened
court ne had not reached a conclusion on all the
perplexing points that have come up. John D.
Lindsay appeared for Nicely. and General Bur
nett United States District Attorney. and his
assistant Ernest Baldwin. for the Government.
Judge Lacombe began by saying:
came here this morning 10 sign an order putting
Neely in custody under an act passed by Soa, no
gress On June last. provided the Government mace
% sTss s s tba Tceptionai zeal Of the prisoners
counsel has produced a most peculiar sftuation-a
complication that, 50 far as know has never G DE pc
fore existed in connection with eXtradltlon cases
Judge Wallace. Of this court. has been applied 70
thers thai T. the act Of June is unconstitutiona
The WRIT Of habeas corpus was asked in order 10
store liberty prisoner elleged to & be held UNDER
it But the act of June does not & apply 1egf Ssf act
Before Judge WaIace's decision Neely was, held
for wrongful conversion. never issued an order
authorizing his holding under the act of @ June or
pus have been refused. an appeal taken and an
prisoner. I don't know upon what information %
Judge Wallace acted Nor can l see what ha else use
@ @'ea 6iso.ss 5is 3s Being brought upon insuacent
grounds Habeas corpus cannot be availed of under
The until some one is held under the act Asno
of arrest in the civil suit 10 stand and not to At.
tempt 70 put him under the provisions OF lhe
Under these circumstances I don't want to sign
Wallace ''9'- S'''' 90
Then, turning to Mt. Lindsay. Judge Laconbe
Esid: Did Judge Wallace know that the man
was not held under the act Of June 6?'
Mr.. Lindsay did not answer directly. He said
DE knew that the prisoner was arrested on an
order issued by you" Mr.. Lindsay explained
his position at some length and said:
This was done in the only way it could be done;
.Judge Wallace held that there was proper ground
fer bringing the action. else the case would never
have been appealed
General Burnett then responded to request
of Judge Lacombe 20 tell him what position he
took in the case. General Burnett said:
co not think Judge Wallace was fully INFORMED 10 me-,
Of the prisoners proceedings in the case BY thls
statement do not mean TO impute TO the pTis-
oner's counsel any improperly in his action. The
SEE what your writ of habeas corpus applies 10 or
upon what grounds the appeal is taken.
Mr Lindsay then said: "An I want is an
opportunity to submit this case TO the Supreme
Court" Judge Lacombe then said:
certainly shan take any action which f6t will \
turn over foreign country or another SIate. u
ma tiers not which, prisoner who is held here
under an order OF arrest in civil or criminal
finued This position ! have taken from the be
einnfzg shall not allow the prisoner TO pc re-
Tnauded until have got through with MIN.
oners ont OF the jurisdiction Of this Court at the
csn of any tribunal on earth.
Judge Lacombe then turned to Marshal Hen
kel and said:
Marshal, you are to keep the prisoner in custody
,lnder the civil order or under Judge Wallaces
order whichever way you choose TO CONSIDER II:
You can advise with the District Attorney about
that.
Judge Lacoulbe allowed the Government until
next Monday TO decide what further action 1t
will take in the case.
a citation in the Neely case signed by Judge
Wallace was filed in the Clerks Of1ce of the
United States District Cour. yesterday. The ci-
tation is to Henry L. Burnett United states
District Attorney, and William Henkel, Cnlted
States Marshal It calls upon them TO appear
before the Supreme Court of the United states
in Washington on September I next, pursuant
70 a petition Of appeal wherein Charles +. w
Neelv is the appellant and Marshal Henkel the
sp0ellee TO show cause why the final order OF
the Circuit Court the said petition should not
be corrected and speedy justice should not be
done in that behalf