The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1900-08-21
STILL In DURANGO.
JUDGE WILL HEAR NEW PETITION
IN NEELY,S CASE

| NEW YORK, Aug. 2O-Judgo Wallace.
| OF the United States circuit court this
afternoon denied the request of United
| states Attorney Burnett for a revocation
or his recent order in the Nicely case
| by which Nicely was remanded to the
custody of the United States marshal
pending an appeal to the United States
| supreme court from the denial of a
| writ of habeas corpus.
Judge Wallace said that he would
await further developments in the ex-
! tradition proceedings.
Judge Wallace said If 1t seemed neces-
| sary or expedient he would permit Nee
ly's counsel to make a further application
Tor writ of habeas corpus and take
such action thereon as was deemed prop
er. Judge Wallace concluded:
Ihere are reasons which would seem
to make it desirable that there be an
other application in habeas corpus. The
petition upon which the writ was denied
alleges that Nicely was at the time re-
strained of his liberty and In the GUS
tody Of the marshal under the warrants
In eXtradiuon proceedings. AS I have
| said, have no reason 20 doubt that this
statement was justified. Upon the ap-
peal to the supreme court, the averment
would have to be taken as true. as there
Is nothing in the petition or the papers
which make up the records to contradict
or quality 1t. The United States attor-
ney insists that 1t Is not true and he
has produced the return Of the marshal
and the opinion of Judge Lacombe. de-
ltvered when the eXtradition proceedings
We're last before him, in support of his
contention that Nicely was not in the
custody of the marshal under the war
rants in extradition. If Neeiys counsel
will prepare another petition in habeas
corpus, which, besides reciting the aver
ments of the former petition, should set
up the marshal's return and the observa-
lions of Judge Lacombe, the whole con-
troversy, in all it's aspects as 1t really
exists, would then be in the record before
the supreme court upon appeal from an
order denying the application for the writ
based upon such petition. The govern
ment then would have the benefit of
every technical question which it may
desire to raise, in order to defeat the
writ"
Mr.. Lindsay then submitted a new pc
tition for a writ of habeas corpus as
suggested by Judge Wallace.
| Judge Wallace, United States District
Attorney Burnett and Mr.. Lindsay began
a discussion over the question as to who
has at present the custody Of Nicely.
1.-The prisoner" said Judge Wallace,
! must be in the custody of some one.
If he is not in the custody of the mar
shall or of the district attorney he must
be in the custody of Judge Lacombe 1t
would show no disrespect to allege in
your petition that the prisoner was not
| in the custody Of the marshal, but of
| Judge Lacombe."
Gen. Burnett said that the prisoner was
not in his custody. He said 1t seemed 10
him that while the prisoner was not, In
his opinion, held under the warrants of
arrest in tradition proceedings. he was
! held a prisoner under the civil order Of
arrest and was in the marshaFs custody
under that order.
Judge Wallace said: eff an officer has
an authority in his hands and makes an
arrest In extradition proceedings, he was
under that authority"
Mr.. Lindsay agreed to take this view
of the case and alleged in his petition
that Nicely was ia the marshaFs Gus
tody.
Immediately upon adjournment the new
petition was filed in the clerks Office o.
the circuit court.