Evening journal., 1921-11-12

with the trial OF the defendant under
the original conviction or enforce the
suspended sentence as the case may
be- The only sentence authorized by
the statute upon original conviction
or upon the court being satisfied that
the defendant has violated the terms
of its order is a fine not exceeding
iive hundred dollars or by imprison-
ment with hard labor for a period
not exceeding one year in such penal
OF reformatory institution or the
State as may be determined upon by
the court, or both. 1t seems newt
ably to follow that the defendant is
deprived OF his liberty without hav-
ing been charged with any offense
known to the law of the State or
Delaware and under a sentence like
wise unknown to the laws of this
State.
Nor is the sentence a trifling one.
Viewed in the light of the facts dis
closed by the record the sentence Is
a sentence for life. It appears from
the sworn petition for the writ
OF habeas corpus that the
petitioner has not the ability
to comply with the order of
court. having no property, means. or
income which~w will enable him to do
so. This sworn statement of the
petitioner was not denied by the re-
turn or at the hearing. Under these
facts It is clear that the incarcera-
tion imposed by the sentence of the
Municipal Court may terminate only
with the life of the petitioner.
Manifestly that Court was without
jurisdiction to impose such sentence
and under the authorities above
cited it is in conflict with the Four
teenth Amendment OF the Federal
Constitution and, hence, is null and
void. In fact counsel for the re-
spondent at the argument did not
attempt to sustain the validity of the
order directing that the petitioner
be committed until the arrearages
are paid, but frankly and COM
mendably admitted that II the order
did not otherwise direct the impris-
onment of the defendant he should
be discharged by this court. Coun-
sci based his contention that the
petitioner should not be discharged
upon that portion OF the order which
requires the defendant to give bond
in the sum of Five Hundred Dollars
with surety for the compliance of
the order. but he failed to point out
any law OF the State OF Delaware
authorizing the Municipal Court to
imprison a person until he shall give
I l.. ..aaN =. - hnrs
only alleged justification for the i'm
prisonment Of the petitioner is the
order Of october 29 and while that
order directs the petitioner to give
bond I do not understand that it
directs that he stand committed un-
til such bond shall be given. The
commitment seems to be required
only until the arrearages are paid
TT being manifest that the petit
tioner Is in custody in violation of
the Constitution, It only remains to
inquire. such imprisonment being
under color OF authority OF State
court. whether the facts and circum-
stances surrounding that imprison-
ment are such that the discretion of
/ this court should be exercised in
/ favor Of the prisoners discharge. To
obtain the answer to this inquiry,
we need but turn once again to the
decisions Of the Supreme Court"
Several cases are quoted, and
Judge Morris concludes:
"In view Of what has been herein
/ before said 1 am constrained to con-
clude that the petitioner is in Gus
tody in violation OF the Constitution
OF the United States and that a
proper exercise OF judicial discretion
requires that he be discharged. In
reaching this conclusion l am not
unmindful Of the fact that the legal
ity OF the petitioners detention was
considered upon a writ of habeas
corpus by the resident judge of New
Castle county. In view OF the great
respect that I entertain for the opin-
ions and judgments of that learnd
Judge It is with trepidation that 1 find
myself not in accord with his con-
clusions, yet I can but believe that
had the aspects of the matter pre-
scnted to this court been called to
4 his attention and the decisions Of the
/ Supreme Court OF the United States
here relied on, been brought to his
notice the proceedings in this court
would have been unnecessary. The
petitioner is discharged"
Judge Hugh M. Morris. in the
United States District Court today
accepted a recommendation OF Unit
ed States District Attorney James
II. Hughes. that charges brought by
Mr. Adair attorney for Victor Kos
lowski. that the papers in his case
before the Municipal Court had been
changed after habeas corpus proceed
ings had been instituted in Koslow-
skis behalf in the Federal Court be
dismissed. Mr.. Hughes addressing
the Court said that he felt that nc
injustice had been done the defend
ant in the changing Of the caption
on the original subpoena issued in
City Court
II was not the caption on suci
documents, he added. that counted
but the body Of the record was what
was considered.
Mr.. Hughes said p. Warner
Green, deputy city solicitor who hat
prosecuted Koslowski in the Munich
pal Court had informed him as tC
how the clerk Of the court from Z
layman's standpoint made the error
in making the writ read "contemp
OF court" instead of rule TO show
cause" Ahdawts were submitted
from Deputy Judge John +. Iynr