Evening star., 1934-02-12

Jurney.
Justice ODonoghue issued writ OF
habeas corpus at his home Saturday
night after Frank j. Hogan, Mac
Cracken's attorney. had submitted TO
him petition stating MacCracken
had been unlawfully arrested. Mac
Cracken had sworn the allegations IN
this petition were true.
Justice ODonoghue made the writ
returnable in court this morning and
when the respective parties arrived
said he was sitting to determine, as
a matter of fact, whether MaoCracken
had been arrested.
Says He Crashed DOOrP
Jurney took the stand and said
MacCracken came to his home short
ly after O'Clock. crashed the door"
and walked into his dining room. He
quoted MacCracken as saying: Il am
here to place myself in your custody.
I understand you have a warrant for
me-"
Jurney said he told MacCracken
"the warrant is in my office and l
refuse to arrest you in any sense"
MacCracken, however, testified all
Jurney said was, i haven't the war
rant with me-
MacCracken admitted he then
turned to a notary public, who had
accompanied him with a petition for
the writ, raised his right hand and
said: Il swear TO that petition"
The notary public then took the
signed petition to the District Su-
Hogan was then notified by telephone
and he proceeded at once to Justice
ODonoghue's home, where he OBJ
tanned the writ.
After MacCracken had finished his
testimony, Justice O'Donoghue turned
toward him and asked four questions:
Did Jurney lay hands on you?"
"No, only when we shook hands as
walked in"
Did he declare you under arrest?"
"No"
You knew you were free to leave?"
yes, knew it later on. I didn't
know it at first"
Are you member of this bar?"
"Yes."
Justice ODonoghue stared at Mac
Cracken for moment and then said:
THE court finds MacCracken was
not arrested Saturday evening and
has not been under arrest by Jurney
during the past several days. Ac
cordingly, the writ of habeas corpus
was improvidently obtained. The writ
Is discharged and the original petition
dismissed.
The court now calls upon Mac
Cracken to arise and make known
why he should not be held in con-
tempt for making Misrepresentation
in obtaining this writ"
MacCracken, his face flushed, arose
and replied
II was advised by counsel that the
Senate warrant for my arrest was
violation of my constitutional rights.
I believed that, and I further believed
I had a right to test the constitution
atty of the warrant in court of law
I understood a writ of habeas corpus
was the only way to bring about that
test. Therefore, I prepared to submit
to arrest by Jurney and then secure a
test in court by applying for a writ.
Then it developed that it was not
the intention of the Senate to have
the matter tested in court, and I was
advised that if I went into the pres
ence of Jurney, regardless of whether
he had the writ at that time, it would
constitute an arrest. On the strength
Of that I swore to the petition.
II would not knowingly misrepre-
prompted solely by a desire to test
the matter in court"
Declared in Contempt.
While MacCracken, who is wanted
by the Senate as a witness in the in
vestigation of airmail contracts, re-
manned standing, Justice ODonoghue
said
The court finds you in contempt"
Hogan then jumped up and in
quired If the court was not going to
hear counsel before rendering its de-
cision. Justice O'Donoghue said he
would hear him.
Hogan cited a case in the United
States Supreme Court in which he
contended it was held that an arrest
submission of the defendant to the
custody of the person having the war
rant.
THE existence of a warrant and
the present means of enforcing it
constitutes an arrest for the purpose
Of securing a writ of habeas corpus"
Hogan declared.
of
He asserted both MacCracken and
his counsel acted in the highest good
faith in an effort to present to this
court a highly important constitu-
tional question.
1T is striking at the very courage
necessary to bring such tess for a
court to hold that he who does so
proceeds at the risk of being held in
contempt" the attorney declared.
Such a holding, he added, would
"start wave of terror"
The case was opened by United
States Attorney Garnett, who gave in
substance Jurney's formal answer to
the petition for the writ. The pro-
ceeding was held in allegiance by JUS
tice O'Donoghue, while Hogan die
tated to a Stenographer MacCracken'S
reply to the answer of the sergeant
at arms.
In his statement, Garnett said;
'MacCracken was not taken into
custody and detained by Jurney. H
Is not now detained or under arrest.
The writ was improvidently issued,
and I ask that it be dismissed.
Refers to Ethics Involved.
This Is no ordinary case. Mac
Cracken is no humble individual. but
former AsSls$ant Secretary of Com
n1erce and The present secretary of
the American Bar Association, and
the keeper of its code of ethics. Fur
thermore, he has been represented by
distinguished counsel.
"The course that he has taken is
not one of inadvertence-not that of
o humble citizen who does not know
his way around.
HE states under oath in his petit