The Pensacola journal. (Pensacola, Fla.) 1898-1985, 1909-11-04

move to rule out or object to the evi
dence for Illegality or otherwise.
EThe court is Of the opinion that
th6 record shows nat there was no
infTmity in the life of the court at
which these couV lotions we're had. 1t
is of the opinion, going further than
the counsel for the government ar
CUES, that after the term was opened
on the first day of March, it re
manned open, although nothing was
done at all, unless the Judge of that
court stopped the term by adjourn
ment for the term. It is not neceS
saTy to go into this, as what the court
holds to be the record, and very prop
erly so, shows that the court was
opened from day to day, and never
adjourned finally until the presiding
Judge came here and opened that
term of court | quite concur with
the counsel and the decision of the
supreme court of Florida, that if in
fact an indictment had been palmed
off on the court that had never been
found. that even after conviction, and
trial, it would be in the power of the
court to inquire into it, and in such
case a writ would issue, discharging
the prisoners.
INDICTMENTS RETURNED.
The facts in this case show that
two of the indictments were found by
the grand jury, on testimony Of vii
nesses summoned before them, and
the third was found on the same tes-
timony That it might have been
found on the same evidence, and no
formal vote taken on the third indict
inert, the court thinks would be only
a matter of irTegulaTity which could
not he taken advantage of, except by
motion to qUash the Indictment, be
fore parties entered plea of not
guilty. So far as regards the conten-
ton that what is called the amended
indictment the court thinks that the
proof shows that it was, and don't
think it necessary to have a formal
vote to evidence the concurrence of
the jury in a finding. They might
say. Well, that's all right, but that
aside. the jury comes down to the
court here, and presents this finding
in open court, and the parties plead
to 1t, and that affiTms the genuine
ness Of It, and that it was properly
found That dispOses of the main
matters argued before the court.
There has already been a motion
of the government that that part of
the sentence which imposes hard
labor be eypugned from the sentence,
and the sentences corrected, and I
have no doubt of the right Of the
court in this respect, as the hard la
Dor was illegal. and as I do not see
how this action of the court can in
jure the defendants, or how they can
object to it.
COMPUTATION OF SENTENCE.
Another matter. the Communication
Of the sentence There is no evil
dence that sentences have ever been
committed. 1t is true that there has
been a letter presented to the court
from the secretary of the president
to a high officer of this state, but
there would have to be a formal war
rant, of pardon OF communication, be-
fore the court could act upon It
As to Judge Shelby's order, I can
not agree with counsel on this point
AS he is a circuit judge. and has
power anywhere in the Fifth judicial
circuit, to order grand juries. / do not
think that his order for the organiza
tion of grand jury in this case was
Illegal, and even if there was irregu-
laTity in that respect. it was waived
by the defendant pleading not guilty.
There will be an order made in each
OF these cases. Femanding the defend
ants to the custody Of the marshal. /
and discharging the writ
Counsel for petitioners. while
earnestly cOntending that a case has
been made which requires the dis
charge Of petitioners, have also sd-|
vised the court that if an order is 4
made Temanding petitioners, they will
apply 70 enlarge them on bail, pending /
an appeal TO the supreme court of /
the United States from this courts (
decision
The supreme court rules on a sub
ieCt after a writ has baa1 issrad sr5
then discharged, leave the matter OF
bail under such circumstances largely
70 the sound discretion Of the court, II
before whom the matter is pending. II
Courts ought not to give cOuntenancel