| Show ILLEGALLY imprisoned the application of peter barton for a 9 writ of habeas corpus was argued before the supreme court J que 6 judge powers appearing for toe petitioner and mr hiles for the government judge powers made an elaborate ar on the questions at issue ilia JA propositions were that when the applicant pleaded guilty to unlawful habitation cohabitation it was a conviction that hat it made no difference whether or not judgment was passed upon hita oa that the court had no juristic tion on to arraign him a second time for or the same sam e offense that it was the aty luty of the court to have informed him ati that he had the right to w plead a former conviction in bar bof of the proceedings in the second that the provision that a F awson all shall ahall not be twice put in jeopardy pardy for the same offense was a institutional provision and could ot be waived by the defense nor bet t aside by the court in support ainis his position the judge read largely irom from authorities clearly sustain in tahe ef the views of the case which he lie wl d As the opinion of the su frema ca court of the e united states ad aard in the nielsen case there W w also I 1 an excess excean of authority by the nS in this cue case where the it had bad no power to try him the pit me court said the court is borud ud to release him in this ease it was waa a constitutional ammu of the defendant that was violated and the judgment must be set aside the court having no jurisdiction to try and determine the char charge of adultery the defendant collye could not by any waiver confer jurisdiction the proceedings were void from the beginning it is a monstrous doctrine to say that by neglect or ignorance of the defendant the court can obtain a power which the law does not give it the fact that sentence was waa pawed passed immediately when the law says pays it should not be done within six hours was of itself sufficient reason for ordering his release from custody in this case the defendant was being wrongfully and unjustly deprived of his liberty and it was the imperative ti ve d duty uty of the court for its 0 own w n honor to hasten to remedy its error mr hiles followed opposing the granting of the writ which he claimed was not the proper process by which to obtain the release of the petitioner much of the argument which followed was so incoherent that it is not possible to give its substance in a synopsis mr hiles declared that the record of conviction for unlawful cohabitation could not be considered by the court As to the proposition that six hours had not elapsed between conviction and passing judgment as the law requires he said that action of the court was a mere irregularity and could not be received on habeas habe citi corpus if barton had pleaded a former conviction he might have availed himself of the writ he asks for but he did not he never gave the court below an opportunity to pass upon the question of his former conviction in the record of this particular cas case there ethere caspo was no showing of a former conviction aW it could not be shown by means of the writ asked for judge powers in his closing remarks said that the supreme court of the united states had said unlawful cohabitation was continuous to the date of the finding fl of the indictment and a second indictment within that period was illegal and a writ of habeas corpus would release a person hold held by the second indictment there was no effort to contradict the record but the record itself isrel is relied led upon and shows the illegality of the proceedings ro eddings in the adultery ease th the 0 united states supreme court had said that these offenses lenses off could not be segregated in any way yet the district attorney did this and still persisted in his course bourse by holding a man in illegal confinement and endeavoring to maintain himself by mere quibbles this man who applies for release is being unlawfully held and to deny him the plain justice to which he be was entitled was a course that th at the court could not follow it had not been necessary to prove a for former M er conviction the law said he could not abt be convicted therefore the entire j judgment was void and upon habeas corpus proceedings he must be e relea released sei the district attorney here fiere admits that this man is unlawfully imprisoned yet by quibbles he still continues to deprive a citizen of his constitutional rights the court in arraigning barton on the second charge was acting without authority and thea judgment the of fifteen months imprisonment hasvold was void vold it cannot be that behave we have yet reached a point in america when we will keep men in prison on a mere technicality there are b balf a dozen cases dependent on tt tats they are unlawfully held and we come here asking the court to give us justice I 1 ask your honors to well consider the case of holding a roan man on a void judgment your honors will have to consider it there is no dodging the issue we must know whether this man can be held in prison in violation of the law and the constitution the case was submitted and taken under advisement |
