State v. Doty

1 Morr. St. Cas. 23

Opinion

Chili, J.:

I h-ve looked into the papers in this case, referred to the suprene court for its decision, on doubts of the judge of the crimiial court.

It tas discretionary with that court, sitting as a re-examining magisrate, to have inquired into the causes of the arrest and detenion of the prisoner, and either to have discharged or remaded to custody, as the existence or absence of the evidence of gult might determine his own judgment.

The arrest appears to have been founded on an affidavit of one Henry Earl, which does not even charge the commission of any act made criminal by onr laws, unsupported by other evidence ; and I see no regular mittimus to the jailor authorizing the detention of the prisoner.

The bare naked suspicions of two magistrates, on the charge of vagrancy, unsupported by other testimony, ought not to weigh a moment with the court, to deprive a citizen of his liberty, who stands free of other criminal charges. I have been utterly unable to ascertain how a constitutional question can arise in this case, either directly, incidentally, or collaterally; and should have had no hesitation in discharging the prisoner; if the case was legitimately before the court.

The statute establishing the criminal court, gives to the judab the power of reference on doubt, only in case of the consent <f the accused. In this case, the consent of the accused does nbt appear of record, and the case must, therefore, be remanded/to the criminal court for further proceedings.

Cause remanded.