Every evening, Wilmington daily commercial., 1921-11-12
KOZLOWSkI FREED
JUDGE MORRIS HOLDS
SENTENCE WAS ILLEGAL
Judge Morris opinion.
Continued from page /

Continued from page
judge Morris Opinion.
Judge Morris opinion stated the
ca@c before him as follows.
Victor kozlowskI being prisoner
In the custody Of George Black, Su-
perlntendent Of Police of the city OF
Wilmington, state OF Delaware pre-
aented to this court his duly verified
petition for writ OF habcas corpus
under the Constitution and statutes Of
The United States, upon the ground
that he WAS In custody in violation Of
the Constitution Of the United states
especially that clause OF the fourteenth
amendment which declares that no
state shall deprive any person OF life,
liberty, or property. without due pro-
cess OF law. The facts therein set forth
with respect to the detention OF the
petitioner and the claim or authority
for such detention are. In substance
thnt n session OF the Municipal Court
of the City Of Wilmington, held on the
2ath day OF October last, the petitioner
was ordered to be committed. not foa
and crirhe, not TO any official or ON
cials, not TO any place of impris6n-
ly thai he be committed until the
arrearages are paid: that the clerk Of
that court refused to issue copy OF
the alleged process by which the petit
TONER was brought before the MUM
cipal Court or of the proceedings had
therein; that the petitioner believes
that he was 40 committed and re-
strained of his liberty for an alleged
! OR pretended contempt OF court in not
obeying an order of that court that he
Is utterly unable 10 comply with such
order and denies the alleged contempt.
Upon presentment OF the petition n
writ OF nabeas corpus was awarded
by this court. directed TO George
Black, the person In whose custody
the prisoner was detained.
Superintendent Black complied with
the courts order. IL is shown that he
was In custody because OF failure TO
comply with an order Of the Munich
pal Court TO pay $40 week on a non
|, support order, which was made In
|, March, 1921.
= Municipal Court Record.
Annexed 10 the return is a copy Of
the record Of the Municipal Court. and
= the opinion says, "it appears there
: from that on March 9TH last a war
rant was issued charging him with
non-support; that upon n plea of not
guiity he was, on the 18th day of
n March, after hearing, adjudged guilty.
n and without imposing the penalty
provided by law the court ordered him
TO pay or cause to be paid 10 a trus-
tee approved by the cotrt the sum of
S2O per week for the support and
maintenance OF his wife and four
minor children under the age of six
teen years In destitute and neces-
sitous circumstances; to appear per-
sonally In that court. whenever there
I after ordered to do so; to comply with
the terms of the order of support, or
\ of any modification thereof; and that
the defendant be released from Gus
tody on probation. upon entering into
v q recognizance without surety to the
State Of Delaware in the sum of five
hundred dollars for compliance by
him with the order Of support. II
further appears from the order that
a the defendant entered into a recog-
nizance, without surety, as ordered
A and that he was. on the 18th day OF
q March. 1921, released from custody
q on probation. The record OF the
y Municipal Court in that cause mex
subsequent TO the order of March II
y is subpoena issued on the 28th da,
o OF October last, directed 10 the pe-
!. titioner, commanding him TO appear
q before the Judge of the Municipa
: Court on the 29th, day of October "a
o testify all those things you shall know
s or be examined in a matter Of con
d troversy depending wherein the Stat
of Delaware is plaintiff. and victo
.s kozlowski is defendant. The next an,
4 last ACTION of the Municipal Court /,
J. the cause in question so far as dis
Y. closed by the record is evidenced b,
n. the following order:
.r And now TO wit: This 29th da
e OF October. A. d. 1921, the defendan
le being present. after hearing all tn
u. evidence produced on behalf of tn
State and the defendant, the Hoi
John f. Lynn, deputy city Judge ,
the Municipal Court for the city {
Wilmington, ordered the defendant I
- be committed until the arrearages al
paid and to give bond in the sum {
al $500 with surety for the complianc
p of the order
M mo mittimus, commitment, or othe
v like process was issued pursuant
g that order.
y mo material facts other than thos
= appearing by the petition and retur
: were disclosed at the hearing follow
= il the return of the writ.
The authority of this court TO issl
the writ of habeas. TO examine the pr,
No ceedings in the Municipal Court. ar
ne 70 dispose of the petitioner as la
es and justice require rests upon SCI
tions ISL, 1852. 753 and 761 of the r.
on yised Statutes of the United Stat
ed which, so far as here pertinent, PR
E. vide:
st Sec. ISL. The Supreme Court al
e. the (circuit and) district courts shi
en- have power to issue writs of habe'
in corpus.
ed "Sec. 1852. The several justices al
lrt Judges of the said courts, within tho
respective jurisdictions; shall ha
power To grant writs of habeas corp
for the purpose of an inquiry into {
cause of restraint of liberty.
a "'Sec. 753. The writ OF habe
W corpus shall in no case extend to
ire prisoner in Jail, unless where he
,s- is In custody in violation of the Co
:, stitution . of the United States.
~, "'Sec. 76l. The court, or justice,
- judge shall proceed in summary W
to determine the facts of the case
w." hearing the testimony and argumen
an' nd thereupon to dispose of the par
90 as law and justice require.
Wo The court holds that IL has [
ILL -. -. . ....;. g., ;,,o,,s,.o -