New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1912-05-11
COURT SENDS BRANDT TO
JAIL, REVERSING GERARD
Continued from first page.

NO, believe that Brandt could he sent
hack 10 Dannemora In the mean time
because. he said the law provided that
on appeal in ha boas corpus proceedings
the prisoner remained in the custody o.
the Sheriff Of the county in when the
proceedings We're brought.
Mr.. Towns was I'm communication with
both District Attorney Whitman and
Attorney General Carmody yesterday
and received their assurances that they
would not hinder an immediate motion
before the Court OF Appeals. Frandt
counsel called attention TO the fact that
the two bail bonds now in force on
Brandt are under his indictments charF-
ing burglary and felonious assault ana
have nothing TO do with any surety Tor
his appearance in connection "l'h inc
habeas corpus proceedings.
Each side 70 the controversy over the
Swedish valet had a different view o.
the law applicable 10 the case. brahH'
Uas already under conviction when
brought into court on a writ or habeas
corpus. and the belief Of some persons
was yesterday that he occupied the
status that he did before, regardless az
the decision Of Judge Rosalsky, who sem
fenced him. TO reopen his case. This &C
ton Of Judge Rosalsky's did not figure
in the case az presented 10 tho ATpellat"
Division. The latter tribunal had 20
consider only the question Of jurisdic-
tinp Of Iudua RpCa'Sky
As to the Crime OF Burglary.
The most important point 10 he de-
cided was whether or not Brandt was
guilty Of burglary in the first degree, OF
which he was convicted.
Brandt pleaded guilty 10 the indlct-
ment. but on the other hand he told
Judge Rosalsky that he did not force his
way into the home Of Mr.. Schiff. which
must have been the most important Of
the circumstances that would have 10 he
present TO make him guilty Of burglary,
but that he found the basement gate
open and just walked in.
Justice Miller said in the opinion Of
the Appellate Division on this point:
Any Judge Of any experience I'm the ad-
miristration Of the criminal law knows
that such statements cannot as a rule he
relied upon. and surely the Judge I'm this
case was not bound 10 accept at it's face
value the statements Of the prisoner that
he found the basement gate. the ash hoist
and cellar door of the New York CITY
dwelling conveniently opon in the night
time for him to enter without being tech
nlcallN guilty Of burglary.
Even upon tne prisoners own state
ments, the manner IN which he entered
the house meets the statutory definition
OF breaking.
The court said further that 1t had
nothing 10 do with the sentence OF the
prisoner, except to determine whether II
was in excess Of the courts power. and
added. Burglary in the first degree is
punishable by Imprisonment for not less
than ten years. and may be punished by
Imprisonment for life"
The Appellate Division said that the
writ Of habeas corpus was never intend
cd for writ Of review. but that It's only
function was to relieve from unlawful
imprisonment. On this point the de-
cision said:
This record disclosed no error or lrrcgu-
larlty which would Justify the interference
of this court. even II the case were here
on appeal from the judgment OF convic-
ton. The question for decision OF writ
Of habeas corpus. II confined within marrow
limits and IN this case might have been
disposed Of on the bare statement that the
court had Jurisdiction Of the defendant and
OF the subject matter