Evening star. [volume] (Washington, D.C.) 1854-1972, 1908-06-09
LOWER COURT SUSTAINED
Refuses to Release Petitioner on
Habeas Corpus Writ.
OPINION IN POLICE COURT CASE
District Regulation Regarding the
Keeping of Fowls Unconstitution-
al-Other Decisions.

Inc DStrlct court OF Appeals III
opinion by Mr.. Justice Van Orsdel today
! affirmed che decision of Justice Stafford
| of Criminal Court No. in refusing TO
dismiss John A. Benson on habeas corpus
proceedings. Benson is being tried with
Frederick A. Hyde, Henry p. Dimond and
Joost II. Schneider for alleged conspir-
acy to defraud the United States out OF
| government lands in the far west
The appellant claimed that the finding
of New York district Judge that Ben
son could not be extradited because the
! Indictment did not state a crime against
the United States concluded the power
of the courts of this District to hold Ben
son under the indictment. Counsel for
appellant also claimed Benson was being
held to answer an infamous crime upon
an Indictment which had been declared
by court of competent jurisdiction to be
| insufficient and invalid and that he was
| not subject to arrest on account of the
indictment.
The appellate court sustains the de-
| cision of Justice Stafford that the United
States district court in New York had
/ jurisdiction of the matter before ii only
! for the purpose of eXtradition and that
! only the courts of this district could pass
on the sufficiency of the indictments re-
| turned here.
: IL
/ jurisprudence" says Justice Van Orsdel.
thai an accused shall be permitted to
escape trial on the merits of a charge
against him through a mere defect in the
preliminary proceedings leading up to the
! trial No discharge by writ of habeas
corpus will operate as a bar TO further
proceedings in the same cause. unless the
| inquiry on the petition for the writ in
wolves full investigation into the merits
of the case. the guilt or innocence of the
accused.
"The rule he continues. that when a
| discharge has been granted on writ OF
habeas corpus the issues of law and fact
| involved are res adjudicata. and that the
person so discharged cannot lawfully be
/ again arrested for the same cause. has no
| application when the discharge has been
of prisoner sought to be extradited
The Law Defined.
! The court also holds that it is we'll set
| tied that a discharge upon habeas corpus
! from imprisonment or process issued upon
an indictment is a bar to future arrest
on the same process. but not TO arrest
and detention upon another process upon
the same indictment.
1t would certainly be extraordinary,
declares Mr.. Justice Van OrsdeL to
! hold that court has power to indict
and try an accused after discharge by
habeaS corpus in a preliminary proceed
ing. but that it could lot try the ac
oused on the same indictment pending
against him at the time OF his dis
| charge. Such a declaration would be
| anomalous. for the same objection that
could be made to an Indictment in eX-
| istence at the time of the discharge
! Of the accused could be interpreted TO
! any other indictment charging him
| with the same offense: hence. the re-
suit would be that the discharge would
| operate as a bar to any future prose-
cution for the same offense"
Police Court Sustained.
The appellate court in an opinion by Mr..
Harry NJ. Clapau1h. chief justice of the
District Supreme Court. who sat
member of the Court of Appeals at the
| hearing. also sustained the action of
Judge Mullowny of the Police Court de-
claring unconstitutional District regu-
latiOn prescribing the conditions under
which residents may keep live fowl and
pigeon on their premises.
! Albert NJ Keen was charged with keep
ing poultry on his premises. 1854 Newton
street northwest, in a square haNlhS %
per cent of its territory improved. with
out first having obtained a permit from
the health officer. When the case was
called for trial in Police Court last June
Judge Mulowny quashed the information
on which the case was brought. on me
ground that the regulation lacked the
requisite uniformity. and discrlminated I'm
| favor of owners of fowl at the public mar
kets and against the residents
| orporation Counsel r. III. Thomas as
serted that the court erred IL QuasninS
! the information against the defendant
/ and took the case to the appenate court
| In arguing the case Nh Thomas contend
| ed that the primary question involved Is
| whether the regulation il void because or
| unrea sona BILE discrimination. He declared
| that municipal authorities are more COM
petent to pass upon such questions than
| judicial tribunals
..rhe free and unregulated keeping Of
! fowl in a thickly settled community" Mr..
! Thomas said can become a matter or
| great annoyance to the people. TO sa!
| nothing of the injury to property by tres
| mass In takes no stretch" of magma
! tion to conceive that fowl might also be-
! come serious menace 10 health COM
| fort and quiet i'm the community. The
| regulation now In force is 10 prevent
| that.
Argument Heard.
| In arguing against the regulation Al
! torney c. c. Tucker said:
| Under this regulation. which is SO
sweeping i'm its terms. if a resident is un-
! fortunate enough TO live i'm one OF these
prescribed squares and goes to the mar
ket house and buys live turkeys or chick
ems. ne cannot take them home for his
| Sunday dinner without first obtaining
permit from Mr.. Woodward. and securing
who live within 100 feet of his premises.
The Commissioners say You shall not
keep any cackling hens. and also say
You shall not keep any live fowl. eX-
cept on certain conditions The situation
is bewilderng. If we are told that we
must not keep cackling hens, naturally
We may assume that We may keep quiet.
well behaved ones. and buy such
fowl Then are arbitrarily told that
We cannot keep the latter. although they
are mild hammered and well behaved un-
less We get a health permit and neigh
borly consent
The court holds the provision in the
regulation is SO indefinite that il Is diff
cult to apprehend what was intended.
is the distance mentioned to be de-
termined - inquiries the court, by meas
urements entirely within the block in
whicn the premises situated where
the fowls or pigeons are to be kept: or
can residents in another block. IL within
! 100 feet of the premises where the fowls
are to be kept. object to the keeping of
the fowls?'