1236
Territory of Washington}
County of Pierce} SS
In the matter of the application of Sam Sock and Jim for writ of Habeas Corpus
To Hon John P Hoyt Judge of the second Judicial District of Washington Territory.
County of Pierce ss.
Your petitioners Sam Sock and Jim respectfully show unto your honor that they are residents of said County and Territory That they are illegally restrained of their liberty by one Henry Winsor Sheriff of said County of Pierce at the City of Tacoma in said County of Pierce
That the cause or pretense of the restraint of
their liberty of your petitioners is as your
petitioners are informed and believe a certain
commitment or commitments under pretended
sentence issued and executed by one W.H.
Harris a Justice of the Peace of said County
of Pierce
That said restraint of the liberty of your petitioners and said pretended commitment under said pretendended sentence and all proceedings in the cause hereinafter specified to and including the issuences of said pretended commitment or commitments are and were wholly illegal, null and void for reasons hereinafter stated
Your petitioners further show that they were
arrested without any process of law whatever
and were afterwards to wit on the 16th day of
August AD 1884 taken before one W. H. Harris
a Justice of the Peace of said County of Pierce where
a complaint was made against them and a
warrant issued thereon charging them with being
on the 15th day of August AD 1884 guilty of the
offense created by section 2073 of the Code of
Washington of the year 1881 as amended
by Act No of the laws of 1883.
That on the 18th day of August 1884 your petitioners appeared before said Justice of the Peace for examination of the matters alleged against them in said complaint and warrant.
The said Justice of the Peace then and there refused to examine your petitioners in accordance with law he the said Justice stating that he was in
Your petitioners by their counsel therefore
requested the said Justice of the Peace to elect
then and there whether he could examine or
try the cause that your petitioners and their
counsel might be informed whether they were
being tried for said offense or merely examined
as to the probable cause to believe them guilty
of said offense which request the said Justice
of the Peace did then and there refuse to
grant but on the contrary decided that
he would hear the evidence and determine
then whether he should call it an examination
or trial. Said Justice thereupon asked
your petitioners if they desired a Jury and
your petitioners and their counsel not knowing
and being wholly unable to ascertain whether your
petitioners were to be tried for said offense
then and there or be merely examined as to whether
there was probable cause to believe them guilty of
said offence were unable to decide whether or
not a jury were desired or needed and so
did not determine and did neither demand
or waive a Jury Whereupon said Justice of
the Peace proceeded to examine witnesses
and hear evidence against your petitioners
After hearing all the evidence produced by
himself the said Justice was informed by counsel
for your petitioners that he had no jurisdiction
to try said offense and was again requested to elect
whether the proceeding was a trial or an
examination and was further requested
to in case he thought there was probable cause
to believe the defendants your petitioners guilty
to bind them over for trial to the District
Court . The said Justice of the
Peace then and there asked your petitioners if they
had any evidence to offer your petitioners by
their counsel replied that not knowing whether
the proceeding was a trial or an examination
no evidence would be offered / although your
petitioners have as they are informed by their counsel
after fully and fairly stating their case to them
a good defense to said offense on the merits thereof
Whereupon the said Justice of the Peace stated
Your Petitioners therefore allege that that the said restraint of their liberty as aforesaid by the said Henry Weiser[?] sheriff as aforesaid is illegal for the following reasons:
1st For that chapter 149 of the Code of Washington Territory for the year 1881 and especially the second section of said Chapter being section 2073 of said code and the amendment thereof passed by the Legislature assembly of said Territory at the session of 1883 is null and void in that it is contrary to the Constitution of the United States and so creates no offence whatever
2d That the offence created by said section 2073 if an offence at all is not an offense within the Jurisdiction of a Justice of the Peace of said Territory to hear try & determine in that it is an offence punishable by imprisonment.
3d That said Justice of the Peace had no Jurisdiction to hear try and determine said cause for the reason that your petitioners were charged in the complaint and warrant aforesaid and were tried jointly as for a joint offence whereas the offence charged if an offense at all was one that could be committed only in severalty[?]
4 That the proceedings had by and before said Justice of the Peace were harsh, arbitrary and unjust and deprived your orator of his constitutional right of a trial by Jury.
5 That said Justice of the Peace in refusing to inform your petitioner whether he was being tried or examined till the case was closed deprived him him of a trial by Jury in that Your petitioners could not determine
6h That said Justice of the Peace had no Jurisdiction to try & determine said cause without a Jury or at least an express Waiver of a Jury by your petitioners which said waiver of Jury trial your petitioners did not at any time express.
7th That all the proceedings of said Justice of the Peace were without Jurisdiction and the Judgement of said Justice of the Peace so rendered in said cause was without Jurisdiction and is void both as to matters of form and substance and gave him no authority whatever to issue any commitment
Your petitioners therefore pray that the Most Gracious Writ of Habeas Corpus issue directed to the said Henry Ausor and his deputies and all other persons under him commanding him and them to have the bodies of your petitioners before Your Honor at a time and place to be therein specified and to do and receive what shall then and there be considered by Your Honor concerning your petitioners together with the time and cause of their detention and that your petitioners may be restored to their liberty and your petitioners will ever pray to.
Sam
by Thomas Smurthwaite his attorney
Sock
by Thomas Smurthwaite his attorney
Jim
by Thomas Smurthwaite his attorney
