Evening star. [volume] (Washington, D.C.) 1854-1972, 1900-08-21
MIDDLE IN THE NEELY CASE.
Question as to How the Prisoner 4
Held,

Judge Wallace of the United States cir
cult court for New York yesterday after
noon denied the request Of United States
Attorney Burnett for a revocation of 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 If it seemed neces-
sary or expedient he would permit Neely's
counsel to make a further application for
writ of habeas corpus, and take such
action thereon as was deemed proper
Judge Wallace concluded:
There are reasons which would seem
to make it desirable that there be another
application in habeas corpus. The petition
upon which the writ was denied alleges
that Nicely was at the time restrained OF
bis liberty, and in the custody of the mar
shall under the warrants In extradft1on
proceedings. AS l have said, l have no
reason to doubt that this statement was
justified.
Upon the appeal 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 record to
contradict or qualify It, The United States
attorney insists that it is not true. and he
has produced the return of the marshal
and the opinion of Judge Lacombe, deliv-
cred when the extradition proceedings
contention that Nicely was not in the Gus
tody Of the marshal under the warrants
in extradition. J. III
IF Neely's counsel will prepare another
petition in hsbeas corpus, which, besides
reciting the averments of the former petit
ton. should set up the marshaIs return
and the observations OF Judge Lacombe,
the whole controversy, in all Its aspects
as II really exists. would then be In the
record before the Supreme Court upon ap-
peal from an order denying the application
for the writ. based upon such petition.
me government then would have the ben
emit or every technical question which 1t
may desire to raise in order to defeat the
writ"
Mr.. Lindsay then submitted a new petit
ton for writ of habeas corpus, as sug-
gested by Judge Wallace
Judge Wallace, United States District
Attorney Burnett and Mr.. Lindsay began
a discussion over the question as to who
at present has the custody Of Nicely.
THE prisoner" said Judge Wallace,
must be in the custody Of some one. If
he Is not In the custody of the marshal
or OF the district attorney he must be in
the custody of Judge Lacombe. 1t would
ton that the prisoner was not in the Gus
combe."
Gen. Burnett said that the prisoner was
him that while the prisoner was not. in
MS opinion, held under the warrants of
arrest, In extradition proceedings he was
held prisoner under the civil order Of
arrest, and was in the marshars custody
under that order
Judge Wallace said: 'If an officer has
an authority in his hands and makes an
arrest 1t is supposed that the arrest is
under that authority"
Mr.. Lindsay agreed to take this view OF
the case, and alleges in his petition that
Nicely was in the marshars custody.
Immediately upon adjournment the new
petition was filed In the clerks Office OF
the circuit court