The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1909-11-05
JONES' DECISION IN
THE HARLAN CASE

been palmed off on the court that had
never been found, that even after convic-
ton and trial 1t would be in the power
of the court to inquire into it, and in such
case a writ would issue discharging the
prisoner. The facts in this case show that
two of the indictments were found by
the grand jury on testimony of witnesses
summoned before them, and the third was
found on the same testimony. That 1t
might have been found on the same evil
dence, and no formal vote taken on the
third indictment, the court thinks would
be only a matter of irregularity which
could not be taken advantage of, except
by motion to quash the Indictment before
parties entered plea of not guilty. So far
as regards the contention that what is
called the amended indictment the court
thinks the proof shows that it was. Don't
think it necessary to have a formal vote
to evidence the concurrence of the jury in
q 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 it, and that affirms the genuine
ness of 1t, 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 espunged
been corrected, and / have no doubt of
the right of the court in this respect, as
the hard labor was illegal, and as I do
not see how this can injure the defend
ants or how they can object to it.
Another matter. the communication of the
sentence. There Is no evidence that SEN
fences have ever been committed. IT'S
true that there has been a letter pre-
scented to the court from the secretary
of the President to a high officer of this
state, but there would have to be for
NAL warrant of pardon communication
before the court could act upon 1t.
AS to Judge Shelbys order, cannot
agree with counsel on this point. As he
is a circuit judge. and has power any
where in the Fifth judicial circuit to
order grand juries I do not think that
his order for the organization of a grand
Jury In this case was illegal, and even If
there was irregularity in that respect, It
was waived by the defendants pleading
not guilty There will be an order en-
tered in each of these cases, remanding
the defendants to the custody of the mar
shall and discharging the writ.
Counsel for petitioners, while earn
estly contending that a case has been
made which requires the discharge of
petitioners, have also advised the court
that II an order is made remanding
petitioners. they will apply to enlarge
them on bail pending an appeal to the
supreme court of the United States from
this courts decision.
The supreme courts rules on sub
ject after a writ has been issued and
then discharged leave the matter of
ball under such circumstances largely
to the sound discretion of the court be-
fore whom the matter is pending.
Courts ought not to give countenance
to resistance to the execution of a SEN
tence, by lightly admitting the prisoner
to bail, pending refusal to discharge
him on habeas corpus. 1t Is in tho in
terest of peace and good order and the
prompt execution Of the law that a SEN
tence, especially after 1t has been af-
firmed by an appellate court, should
be executed without undue delay, still
there are instances where a prisoner
may properly ask to be enlarged on
bail, under such circumstances, and
one of them Is where grave consti-
tutional questions are involved affect
Ing the liberty Of the citizen in matters
upon which the appellate court which
has affirmed the sentence has not
passed, or had opportunity to pass upon,
and which have only lately come to
the knowledge of petitioner, and go to
the destruction of the sentence. even
on collateral attack by habeas corpus
The general rule is stated in A. and f.
Encyc. Law, page SIS, as follows:
I'm the United States, after convic-
ton, no constitutional right to bail ex-
lists, and the granting of bail rests in
the sound discretion OF the court. In
cases Of misdemeanor this discretion Is
exercised freely in its favor, but in
felonies bail is allowed with great eau
ton and only whore the peculiar cir
cumstances of the case render 1t right
and proper"
In Rose ex rel Carter VS.. Roberts, 90
Federal 952, the circuit court of appeals
for the Second judicial district, passed
upon Question differing little in prin-
cipal from that raised by the appli-
cation for bail In these cases. The court
says: 1T is the right and privilege OF
a person deprived Of liberty to review
to the extent permitted by law the
legality of his contention, even when
1t IL pursuant to the judgment OF SEN
tence Of court and the execution Of