The times. [volume] (Washington [D.C.]) 1897-1901, 1900-08-14
Nicely Case CONFUSED
Prisoner Remanded Pending Ap-
pea to SupremeCeurt.
Judge Lacombe. of the United Stntes
Circuit CcHrt. Does Not Sign the
Papers for the ENtradition OF the
Accused to Cuba--I nusuai Compile
cations - Habens Corpus Denied.

NEW YORK, Aug. 13.-Jadge Lacombe,
Of the United States Circuit Court, came
down to the city today from his summer
home on the Hudson. TO sign an order in
accord with the recent decision Cor the
extradition OF C. F. W. Nicely, accused of
frauds in connection with the administra-
ton of the department of posts in Cuba.
But the judge returned home tonight with
/ out having signed the order, and alto
| gether the case is left in a very miXed-up
condition. These complications are the
direct result of the action recently taken
by Neely's counsel. John D. Lindsay, in
going before Judge Wallace and asking
for writ of habeas corpus for his client.
In announcing this decision Judge La
| combe energetically expressed himself in
terms of astonishment at the situation,
which had become known TO him only
| within half hour and which had left
| him no alternative which he could deem
proper to pursue.
! He said he had come 20 court prepared
! to sign the order OF extradition under the
statute of June 9, 1900; provided, as ne
had previously stated, the Government
J
and criminal proceeding against the
prisoner now pending in this district. Just
/ before going upon the bench he had found
| himself confronted by a most peculiar
| situation.
The zeal of the prisoners counsel had
succeeded in creating an extraordinary
complication which, to his knowledge, had
never existed before, and which in the
! nature of things would scarcely have been
/ deemed possible. Counsel had applied to
Judge Wallace of the United States Cir
/ cult Court Of Appeals for wriLof habeas
| corpus before any order OF commitment for
extradition had been signed and Judge
Wallace had denied the application.
But thereupon Judge Wallace had grant
ed an allowance Of appeal to the United
| States Supreme Court from an unexisting
order of extradition, and not only that,
| but had also signed an order committing
the prisoner to the custody of the United
I States marshal pending the determination
of the appeal, precisely as would have been
| proper had the extradition order been
signed and the writ OF habeas corpus
| granted.
Judge Lacombe could not believe that
| counsel for the prisoner had given Judge
| Wallace full light on the case. He could
not believe that Judge Wallace had had all
| the facts before him. He could not doubt,
| if the case went to the Supreme Court CT
| the United States in it's present posture,
| that the appeal would be summarily dis
| missed as prematurely taken and granted
and that proceedings already initiated in
! this district would have to be repeated.
1t was little past II O'Clock when the
| judge took his seat and John D. Lindsay
| appeared for Nicely, and United States Dis
| trict Attorney Henry L. Burnett and his
| assistant Mr.. E. E. Baldwin. for the Gov
eminent The prisoner was brought into
| court In the custody of Marshal William
Henkel
! Il came here this morning" began Judge
| LacomOe,, Ito sign an order putting Nicely
| in custody under an act passed by Con-
gress on June last, provided the Govern
ment made disposition of the two suits
| under which orders Of arrest still stand
against him. | fnds however, that the
| exceptional zeal Of the prisoners counsel
| has produced most peculiar situation
a complication that SO far as l know has
| never before existed in connection with
extradition cases. Judge Wallace, of this
court has been applied to for u writ OF
! habeas corpus on the ground, among other
| things that the act OF June is unconsti-
| tutional. The writ of habeas corpus was
asked in order to test the constitutionality
OF the act and to restore to liberty the
prisoner alleged to be held under it. But
| the act of June doesn't apply here. No
one is restrained Of his liberty under that
act.
Before Judge Wallaces decision Nicely
| was held under the order OF arrest issued
| IN the civil suit for wrongful conversion.
l never Issued an order authorizing him
/ to be held under the act of June 6. Now
an appeal has been taken and an order
/ issued by Judge Wallace remanding the
! prisoner ] don't know upon what infor-
/ nation Judge Wallace acted. Nor can l
see what else can happen to the appeal
/ when it gets to the United States Supreme
/ Court, except that the justices will dismiss
1 ii as being brought upon insufficient
! ground. Habeas corpus cannot be awaited
of under the act until some one is held
I under the act. And l have been careful
( all along to allow the order OF arrest in
the civil suit to stand, and not 20 attempt
/ to put him under the provisions of the act
Under these circumstances, concluded
the judge, Il don't want &c sign papers
dismissing the charges and leaving the
of Judge Wallace"
John d. Lindsay NeeIy's jealous counsel
| and the author OF the extraordinary COM
plication," defended his course in applying
for writ Of habeas corpus and for an al
I lowance Of appeal in advance Of the issu-
ance Of an order OF extrsdition, upon the
ground that if he had waited therefor, the
present lHdCctsSiDlllts OF Inc Federal
! judges, due to temporary removal from the
! city or to Illness. would have rendered it
/ easy for the Government to have de-
| spatched the prisoner from the country In
defeat of his right to a writ of habeas cor
pus and appeal TO the Supreme Court. He
| protested, also, that the petition for the
/ habeas corpus writ which had been pre-
seRted TO Judge Wallac, had rec.ted the
whole history of the case.
I United States District Attorney Henry l.
4 Burnett disputed the assertion Of Mr.. Lind
say that the papers before Judge Wallace
| had exhibited he whole situation, although
| ne added, he did not mean TO impute to
Mr.. Lindsay any improperly.
Il VIII not" reiterated Judge Lacombe
emphaticaily, sign an order removing out
! Of the jurisdiction OF this district A man
held in it under civil and criminal process;
nor viii l have prisoner OF this district
| taken away from it by any tribunal on
earth until this court has got through with
| him.
Turning to the marshal in charge of the
prisoner, Judge Lacombe said: Il remand
| the prisoner to your custody. There may
| be some question whether you hold him
under the civil order or under the commit
ment OF Judge Wallace-but that is 4
| problem you must work out for yourself"
Nicely, who had looked on with an ex-
| preston of increasing hope as the extra
| ordinary complication" developed smiled
broadly as he departed with the marshal
| instead of with a Cuban eXtradtion officer