New-York tribune., 1912-02-22

THE writ is sustained and the prisoner
reUanded 10 the Tombs subject TO an ap-
rlication for bail TO await trial under the
Indictment for burglary in the first oesree'
This was the decision given by Justice
Gerard Yesterday afternoon on the app'ica-
tion for a writ of habeas corpus for Foike
= Brandt The decision was handed GOWN
shortlv after the word came from Albany
that Governor Dix had declined to act IN
tba case until he had conferred with Hand
preceding the final words sustaining the
writ. II said:
NV decision on this writ does not set the
rrisoner free. The prisoner may or may
nat ne guilty OF the crime charged In the
,na,etn,ent. and my decision simply puts
h,r, IN the same position, except for the
service of a sentence Of nearly nve years
.L.+ he xSas in before sentence was i'm
posed upon him ,-,... =.
m the opinion on which the oeclsio" 70
based Judge Rosalsky IS severely 'aAe" ~
task.
-e.Ts r-andt was sentenced because he was
involved IN a net of verbiase' says 'us'iVe
c.rard, land pleaded guilty TO eIi,''
Vzhich his examination at the tifne oi n'9
n,aa showed he did not admit coinmit,lns
ard ala not intend TO. plead suiity TO- ne
.hon,d not be left to seek his remedy from
executive clemency alone. He Is entitled
"a decision of the court relieving MIN
fv,,n, the stigma of his mistaken plea
s.vsre Criticism of Rosalsky.
Ava IN discussing the proceedings before
Judge Rosslsky the criticism Is sui iio''
severe. .,.,,o, no
...,.ary the commission of a mere error
.os.,b,v ON a ruling as to the admis-
-. A. the rejection of evidence by q trial
- "a the occurrence OF what amounts
TO legal deception as far as inc prls'neI
is concerned. and which U.s. 'hereioie' :"
derosation' of his rights says JUSTLY
Gerard. IAN error such as an error IN 'he
nature OF a ruling on the admission Oh re-
isc,,on OF evidence may be reversed Oh ap-
neal hut an error of the nature Oh 'he ono
made here after Its occurrence gives -the
,ndee 10 jurisdiction 10 sentence tne P'.'
oner."
lie continues.
There are active errors and errors OF 81
lcnce. Here the trial ,ho lhes9 PRISONER seS was Was
not represfnted by counsel the prisoner
asked Tor the aid Of his counsel ana scare ~
In ig the plea inade Wheh 'iIS !1ae.tso,,nr
tyonn The sworn statement Of the prisoner
facts which show that the prisoner do not
commit the. crime TO which he peaoeu
sruilty and that he did not Intend TO pleao
Guilty TO such crime.
The Judge who sits TO represent the pris-
oner and TO see that justice ls dulS auniih- ,I. d.
isteTed cannot be party even slleIily "
such a proceeding as against the prisoner
II \ deception were practised by a prose
cater the Judgment would probably be void
shie and not void But where the error oil
This nature is that OF the judge he has no
jurisdiction after its happening TO sen.
yence the prisoner. Lord Coke has said
that such state OF facts avoids all judi
cIal acts. Can any court hold that where
a nrisoner Is sentenced by Judge who has
Saf silent when 1t was his duty to speak,
who has learned from the prisoners own
lips that he does not admit the crime or
intend 10 make the plea, that the only rem
edy Of the prisoner Is by appeal? AS
nave said already. II the prisoner is mis-
taken In his plea and he sees the judge act
In sentencing him he will be confirmed in
his mistake and ldlled into inaction until