The times. [volume] (Washington [D.C.]) 1897-1901, 1900-08-16
ASPECTS OF THE NELLY CASE.
District Attorney burnett Trying 4,
s5Jye the DIHicuIty


NEW YORK. Aug. 15.-United States
district Attorney Henry l. Burnett said
today that the Government had not vet
decided upon course of action to meet
the suddenly evoked complication which
prevented Judge Lscombe from sending
Charles F. w. Nicely back to Havana to
be tried on charges of embezzling Cuban
postal funds.
Il am. however" continued General Bur
nett. working cut a plan which | think
will solve the difficulty"
He would not. of course. indicate any
thing of the nature CT the plan. But moth
ing besides getting ready for action. he
said, would be done between now and Mon
day.
The general discussed the failure OF John
D. Lindsay Neely's counsel, to put all the
facts before Judge Wallace when he went
before him in ex-parte proceedings. and
secured allowance Of appeal and an order
CT commitment; but said most explicitly
that he was confident these omissions on
the part of Mr.. Lindsay were not designed,
but were the results of haste, possibly of
some carelessness. In his petition for the
writ of habeas corpus. Mr.. Lindsay had
not made it clear to Judge Wallace that
the prisoner was not held under an order
OF commitment :ased on the act of June
D. this year; and the copies of papers in
previous proceedings. which Mr.. Lindsay
handed up lacked the endorsement which
would have shown at once to Judge Wal
lace that the prisoner was in custody TN
der an order In a civil suit for the recov-
cry of converted funds.
General Burnett did not know where Mr.
Lindsay had obtained those copies. With
out the endorsements they certainly were
not at the time they were handed up true
copies of the full official documents. Had
they c5me from the United States mar
shals office. or from the office OF the clerk
OF the court-the proper sources from
which to obtain official copies of such
paprs-they would have contained the en-
dorsements which happened to be so vital
part of the documents The Govern
ment, being unrepresented at the exparte
hearing-in fact. being quite ignorant of it
until afterward-of course, could not point
out to Judge Wallace these essential omis-
Sions.
rs It not somewhat singular that these
particular oversights omissions. Or acts of
Observation-Disclosures they may be term
ed-in Mr.. Lindsay's ex-parte presenta-
tion Of the case to Judge Wallace, should
have been precisely such as redcun6si to
the advantage Of his client" was asked
But did they rebound to the advantage
OF his client? Suppose the Supreme Court
should at once dismiss the appeal upon the
ground of prematureness, as Judge La
eombe predicts it would, in what way
would the interest of his client be served -
John D. Lindsay, counsel for Nelly,
makes this statement in reply to the
prosecutions criticism:
General Burnett undertakes to elaim
that the civil order of arrest is the only
process by which Marshal HelkeI holds
Mr.. Nicely. The facts are these: On the
18th OF June Judge Lacombe issued two
warrants directed to the marshal. COM
handing him to arrest Mr. Nicely upon two
complaints drawn under the act OF June 6.
1900. Mr. Nicely was brought before Judge
Laccmbe the following day urier those
warrants, and a hearing ensued which was
continued by adjournmeIts till July q,
when the evidence was closed. At the con-
clusion of the proceeding each warrant was
1860. Z. II. Iacombe, L. S. c. j.
mo decision has been formally entered
yet. and the warrants have not been ether
wise discharged. 1t is therefore clear that
the marshal has held Mr. Nicely und,
them ever since they were issued We had
a right to apply for writ the moment
Mr. Nicely. was taken into custody under
the two warrant in the extradition pro-
ceedings. The situation as it existed when
Judge Laeombe rendered his last opinion
imperativsly required us to act at once
Otherwise the chances of securing a re-
view Of the constitutional questions would
have been very slight