Newark evening star and Newark advertiser. [volume] (Newark, N.J.) 1909-1916, 1913-01-25
ELECTION OFFICER
LOSES APPEAL TO
HIGHEST TRIBUNAL
Conviction Of Marcus
Van Ness for Fraud
Stands.
MUST SERVE ONE YEAR
IN COUNTY PENITENTIARY
Justice MahIon Pitney Writes
Opinion in Fourth Ward
Case.

~ elections in the Fourth ward Oh
z.t;s citv. now serving a one-year
sentence for a violation of the cleo
,ion laws during the primary of lslo'
has lost out in the appeal OF his case
10 the United States Supreme Court.
The decision was written by Justice
Mahlon Pitney, before whom the case
was argued on last "Wednesday py
F,rst Assistant Prosecutor Frederick
y r,ehlbach. representing the state
and Paul r. Lefferts, represen'ihe
Van Ness. A copy of the decision
reached MIR. Lehlbach by mail tooas
and upholds every contention al
vanced by Mr.. Lehlbach tending 70
show that the conviction shoulo
stand. The case reached the supreme
Court through the dismissal by Fed
eral Judge Cross of writ OF haoeas
corpus asked for by Mr.. Lenerts on
December r.
Following this dismissal, Mr.. LeI-
ferts made application to the su-
preme Court for the allowance Oh an
appeal or certificate that there was
probable cause for such an allow
ance in order to review the action
of Judge Cross in remanding Van
Ness into the custody of the sherin
of Essex county.
In other words, it was the last
possible step that could be taken to
keep Van Ness from serving his SEN
tence and to obtain new trial
Disagreement in First Trial.
The first trial of the case resulted
IN a disagreement after the jury had
been out eight hours. At that time
the Jury was dismissed by the court
clerk on telephonic orders from Judge
Thomas A. Davis, the trial judge.
The dismissal of the jury by the
court clerk was. contended by. james
= r. Nugent, then counsel for Van
Ness, to have been Illegal, and that
the defendant, Van Ness. could not
again be put on trial. This conten-
ton was overruled by the Supreme
Court and the Court of Errors and
Appeais. and Van Ness tried again,
his conviction and sentence of one
year resulting, the decision of the
upper courts being handed down last
November.
Then came the appeals by Mr.. Lef-
ferts to the United States Court, on
the grounds that the rights of Van
Ness under the fourteenth amendment
10 the United States Constitution had
been violated in that he had twice
been placed in jeopardy for the same
offense.
IL was this matter that was ar
gued by Mr.. Lehlbach and Mr.. Lef-
ferts before Justice Pitney on
Wednesday. In his decision JUS
tice Pitney says in part This mat
ter comes before me on an applica-
tion for the allowance OF an appeal
or certificate that there is probable
cause for such allowance sought in
order to review in the Supreme
Court of the United States the de-
cision of Judge Cross in the United
States District Court in New Jer-
sev Of habeas corpus proceedings
and the remanding Of Van Ness to
the custody of the sheriff
THE contention that the first trial
was mistrial is entirely untenable
In my opinion. The trial a. ounted to
due process of law and in no wise
was a violation of the rights of
Van Ness under the fourteenth
amendment. Chief Justice Gummere's S
decision that while the action of the
clerk in dismissing the jury was Leg
ally erroneous, did not injure the de-
fendant's tight in any way.
No Cause for Appeal. :
Tho fifth amendment to the con-
stitution of the United States says
that no person shall be subject for
same offense to be twice put in
jeopardy of life or limb. 1t has been
established by numerous decisions In
the United States Supreme Court that
this amendment, like all of the first
ten amendments TO the Federal con-
stitution, is not obligatory upon the
governments of the several States nor
upon their judicial establishments.
but regulates alone the proceedings
of the Federal courts.
Upon careful consideration of the
case of Van Ness, ] am not able to
find even legal error In the conviction
of Van Ness, much less any denial
of due process of law He was con-
victed after regular trial and that
conviction has been affirmed after
two appeals in the State courts. 1t
seems to me that Judge Cross did
right In dismissing the writ of habeas
corpus and ] can see no probable
cause for the allowance of an appeal
TO the United States Supreme Court.n
Van Ness is now in the county peni-
tentiary. where he is serving his sem
tence of year He entered the in