New-York tribune., 1907-12-18
KUHNE In CONTEMPT.
JAIL AND FINE FOR HIM.
Should Haze Obeyed Writ IN the
Jenkins Case, Court Says.


August Kuhne acting captain in charge of the
Brooklyn Detective Bureau, adjudged in
contempt of court by Justice Burr in the Su-
preme Court yesterday for refusing to obey a
writ OF habeas corpus The writ was issued by
Justice Burr the afternoon Frank Jenkins was
indicted in connection with the Brooklyn bank
scandals It was served upon Kuhne he was
about to photograph and measure Jenkins for
the rogues' gallery. kuhne refused 1t, as the
writ had been originally issued to protect John
C. Jenkins jr- who lodged the police. and
Frank Jenkinss name had afterward been sub
stituted Stephen c. Baldwin Jenkinss attor
ney brought contempt proceedings against
Kufrre and the case tried before Justice
Burr.
In handing down his decision Justice Burr
sentenced Kuhne to serve thirty days IN jail
and to pay fine of $3.50. He signed commit
nent, but did not formally present II to the
Sheriff owing TO agreement with kuhne's
LAWYER ex-Assistant District Attorney William
Rand He promised Rand that he would give
him every chance to get the case before the
Appellate Division and that he would not turn
the commitment over to Sheriff Flaherty untl
to-day. Rand fled notice Of appeal from Jus
tice Burr's decision in the afternoon. and this
morning he will go before some justice OF the
Supreme Court and ask for stay of sentence
pending the appeal.
Commissioner Bingham said he would stand
by his men IF the law allows" he said. i
will pay the fine out Of the Police Department
funds"
The decision Of the court begins With reci-
tation of the technicalities which Kuhne inter
nosed as part Of his defence and dismisses them
as uninportant. II then takes UP the question
as to the changes in the writ and says the
name of John G. Jenkins. jr. had been changed
TO that of Frank Jenkins In the mandatory
clauses OF the writ before the paper was sub
rnitted to the justice. II explains the manner
In which Frank Jenkins was seized by kuhne
and his men on the afternoon Of November 70
as he stepped into the street from the county
court house. having been bailed out after his
arraignment upon the indictment for forgery IN
the third degree, and forced to go to Police
FIeadouarters IN spite of the protest Of his wife
and counsel
AT Police Headquarters" states the decision,
zone OF the counsel for Frank Jenkins observed
the failure to change the words John q. TO
Frank in the salutation clause and also IN the
middle Of the writ. Taking pen in the pres
ence of the respondent he changed these words.
These changes were not necessary. Inc man
datorv clauses commanded the person upon
which the writ was served to have the oooy OF
t7ranl, Jenkins before the justice issuing the
While the HCt OF COuIS'7i Al i!'~FAAA-o 49,
changes was indiscreet and injudicious, IT is
manifest that II was not done with an evli IN
tent. A writ when it has once been signed
should never be changed in the slightest degree
without the express authority of the court"
Reparding Kuhnes testimony as 10 what oc-
Cured at Police Headquarters when the writ
was presented the justice says: 4 am con-
WINGED that the respondent in this case IN MS
effort TO extrcate himself from the difhculty In
which he found himself committed wilful and
deliberate periury on the witness stand in the
examination held before he. That he was not
noisIed was apparent from the fact that he old
r-oduce the body of Frank Jenkins after the
n,,rnose which he Lad sought to accomplish. and
which he admits that he knew that 1t was the
design of the writ to prevent, had been accom-
plished He admitted that he knew that the
right of the Police Department to take photo
eraphs and measurements of persons who had
not been convicted OF crime had been ques-
toned lie made effort 10 ascertain the
validity OF the writ. For the purpose or defeat-
ing its purpose and OF accomplishing MS own
he deliberately disregarded Its mandate in the
hone that IN some manner he might afterward
find an excuse for so doing"
After considering the defence that the justice
had no right TO punish for contempt, having no
statutory right TO issue habeas corpus Wrlt
the decision says the VIII Is q SoHii4'OH iI"
writ and not statutory one, and that IL would
exist if all the statutes regarding it were with
drawn. and that justice of the Supreme Court
has the right to issue such writ in or out OF
chambers. 1t continues:
But if there any question about the power
of the court to punish for d criminal contempt
clearly it exists to punish for civ contempt IN
this the right Of the re!ator III tias Speciat
proceeding to personal liberty and immunity OF
person and his remedy to preserve TINS nave beeh
defeated and impaired by the conduct OF the re-
punish has been preserved by statute IN every
had been usually adopted and practised Code OF
civil Procedure, Section IA, Subdivision %:
1t only remains to determine what punishment
shall be inflicted upon the respondent IN TINS cas-
The writ OF habeas corpus is the most venerable
lost in antiquity, but it antedated Magma Charta.
II is n writ so sacred that it alone of the great
state writs is especially protected by provisions pot
of federal and state constitutions. II Is writ SO
important that alone OF the state writs is py spe
riai nrovison of statute permitted TO be issued on
Sunday Tie right TO il is so absolute that Sc
we're penalty is imposed upon any court or judge
who refuses to grant the writ upon appncatlon OF
ar/ person entitled thereto punishment III ,t .io
case must be inflicted sufficiently severe 10 vinol-
cafe the dignity of this writ and to impress upon
respondent and others tne seTiou0 Consequences
OF disobedience 10 1t