The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1909-11-05

Montgomery, November S.-(Special.)-
Judge Thomas G. Jones has handed down
the following opinion in the ex parte
William s. Harlan ct al:
This is an important case, and has
been argued with zeal and ability on
both sides, and I have thought 1t proper.
therefore, to outline the reasons which
control the Judgment of the court in the
petition for write of habeas corpus. l
have not had an opportunity to write out
all of 1t.
The petitions for the issue of writs in
these cases were framed to bring them
within the doctrine of the supreme court
of the United States in Hans Nelson,
petitioner, 81 U. S., 1857 and ex parte
Balm, 121 U. s., 1856, where the supreme
court discharged prisoners under SEN
tence of court which had jurisdiction
of person and subject matter, because
in the progress of the causes there has
been-as here claimed-a violation or
some fundamental constitutional right OF
the prisoners. The petition here alleges
that the circuit court of the United
States for the Northern District OF Flor
ida had no jurisdiction to try and SEN
tence the prisoners, 1t being alleged,
among other things. that there was no
legal term of the court, at which the
convictions were had. That the indict-
ment on which the trial and convictions
were had were not in fact found by
grand jury, that no evidence was onered
before the grand jury in support OF the
indictments, that the sentence and con-
victions were Illegal, because the petit
TONERS were sentenced to Imprisonment
at hard labor in the penitentiary, whereas
the statute only authorizes imprisonment
in the penitentiary; that since the con-
viction and sentence the President mad
committed the sentence to six months
Imprisonment, and imprisonment for such
a time 1t is made could not legally be
executed In the penitentiary. The petit
toners further aver that the petitioners
had been tried in the circuit court OF
the United States for the Northern Dis
trfct of Florida for an oHense Wnlch
in truth and fact was committed In tho
Middle District of Alabama and that the
conviction in this district in this respect
are in violation of the constitution ~
the United States.
None of these questions, except the
last, was raised before the circuit court
of appeals, when the convictions and
sentences In these cases were affirmed.
AS the questions raised by the petitions
involved grave constitutional rights OF the
citizen, the court felt compelled to issue
the writ. that the petitioners might
have opportunity to have these matters
inquired into.
The indictment in these cases charged
that the offense was committed in the
Northern District of Florida. The verdict
of the. Jury affirms that the charge Is
true Habeas corpus is not revisory or
appellate writ in any respect This court
ord disproves that objection. rms cour.
cannot go into that matter without
usurping the authority. and in effect
reversing the judgment of another and
higher tribunal The court has, there
fore, decl "a to look into the bill of ex-
ceptions on the trial in this case, which
Is a part of the record only for appellate
purposes, and to consider whether the
evidence before the circuit court for the
Northern District of Florida JUSTIFIED the
finding that the offense was committed
in the Northern District of Florida. Inc
other questions raised are not conciuded
by the decisions of the circuit court OF
appeals, and relate to matters, which IL
proved, render the sentences, In the cases
not merely voidable, but absolutely void.
II is unnecessary to cite authorities to
show If there was no legal term of the
court at which the convictions were had,
that such convictions were utilities, NOR
that If the indictments were not In fact
returned by the grand jury, all that pro-
ceeding based on it would be a nudity,
under the decision in Elk parte Balm,
121 u. s., 1s6, and Hans Nelson. petit
toner, 131 U. s., 1885,
The court, therefore, heard evidence in
summary way upon these matters, al
lowing both sides to offer such portion Of
the record and other evidence bearing
upon the issues as they saw proper, sub
ject to the right to move to rule out or
object to the evidence for illegality or
otherwise.
The court Is of the opinion that the rec
ord shown that there was no infrmity
in the life of the court at which these
convictions were had 1t is of the opinion,
going further than the counsel for the
government argues, that after the term
was opened on the LIST day of March. it
remained open, although nothing was done
at all. unless the judge of that court
stopped the term by adjournment for the
term. 1t is not necessary to 30 into this.
as what the court holds to bel the record,
and very properly SO, shows that the
court was opened from day to day and
never adjourned finally until the presid-
ing Judge came here and opened that
term of court. l quite concur with the
counsel and the supreme court Of Flor
ida, that II in fact an indictment had