Ex parte Bennett

2 Cranch 612 | U.S. Circuit Court for the District of District of Columbia | 1825

THE COURT

(nem. con.) discharged the prisoner on the ground of the want of a seal, and the informality of the warrant, and did not recommit him, because there was no evidence that he had committed any offence in the District of Columbia.

The prisoner was afterwards arrested again and committed upon a charge of stealing lottery tickets and a penknife, from B. O. Tyler in this county, and was again brought before the court by habeas corpus, when Mr. C. C. Lee and Mr. Jones, for the prisoner, contended that although the commitment be perfectly regular and formal and states that the parly is charged on oath with an offence for which the committing magistrate has a right to commit, the court can and will rehear the case and revise his judgment. 3 Bac. Abr. tit. “Habeas Corpus,” p. 438, (B) 13; 1 Chit Crim. Law, 113;, Cald. 295; 1 Leach, 270; 4 Chit. Crim. Law, 123, etc.; Ex parte Bollman, 4 Cranch, [8 U. S.] 114; Com. v. Holloway, 5 Bin. 512; Claxton’s Case, 12 Mod. 566.

THE COURT, on the next day, which was the last day of the term, decided (THRUS-TON, Circuit Judge, dissenting, and wishing further time to consider the question,) that they would examine the witnesses, as they were all present; but said that they would not consider themselves bound by this case as a precedent. After examining the witnesses, THE COURT ordered the prisoner to find bail in $500, and upon his refusal, the prisoner was remanded.

If the commitment be so bad upon its face that the court must discharge the prisoner from that commitment, the court will, if they have sufficient evidence before them, commit the prisoner de novo, and order the witnesses to recognize for their appearance, at the proper time and place, to testify on behalf of the United States. If the witnesses, upon whose testimony the prisoner was committed by the magistrate, cannot be had immediately, and the prisoner will not consent that their testimony shall be stated by the magistrate, and that the court shall proceed to act upon such statement as if* the witnesses were present and had testified before the court, or if the committing magistrate be dead, the court will remand the prisoner for further examination until the testimony of the witnesses can be had.
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