James Harlan, Jr. to Richard T. Jacob

KYR-0001-004-0581.xml

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Accession Number

KYR-0001-004-0581

Document Genre

Petition

Repository

Kentucky Department for Libraries and Archives

Collection

Office of the Governor, Thomas E. Bramlette: Governor's official correspondence file, petitions for pardons, remissions, and respites 1863-1867

Item Location

BR9-422 to BR9-424

Date of Creation

26 March 1864

Dates Mentioned

1864-03-26

1864-03-30

James Harlan, Jr. to Richard T. Jacob, 26 March 1864, Office of the Governor, Thomas E. Bramlette: Governor's official correspondence file, petitions for pardons, remissions, and respites 1863-1867, BR9-422 to BR9-424, Kentucky Department for Libraries and Archives, Frankfort, KY. Accessed via the Civil War Governors of Kentucky Digital Documentary Edition, discovery.civilwargovernors.org/document/KYR-0001-004-0581, (accessed May 9, 2024).

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Hon R. T. Jacobs
Governor &c.

The undersigned on behalf of John Callahan asks for a remission of a fine of one hundred dollars imposed upon him by the Police Court of Frankfort upon the [precleuded] charge of selling liquor to a slave. He was tried and convicted under a city ordinance which imposes a higher and different penalty than the state Statute Law, and makes the informer, who by the ordinance gets one fourth of the in fine, not only a competent witness, but provides that the fact of his interest in the result shall in no wise invalidate his testimony. The only witness in the case upon the question of the corpus delicte, the selling, was James Graves the informer, who stated that he expected to get one fourth of the judgment to be obtained upon his testimony. Under the ordinance the jury were not allowed any discretion in weighing his credibility.

The City Council of Frankfort transcended their powers in passing the ordinance

In all matters relating to the government they must be subordinate to the state ~~gov~~ law. The ordinance in several, the material parts, is in conflict with the general law.

1. The Revised Statutes 2 vol sec 4 page 366 fixes the penalty for selling liquor to a slave at fifty dollars whereas the city ordinance fixes it at one hundred dollars.

2. The city ordinance ~~makes the informal~~ gives the informer one fourth and makes him a competent witness- ~~They have waiving~~ The general rule of practice prevailing in this State is, that he who is a party to the action, or interested in the result, is incompetent. But waiving this point, we insist

3. The city is had no right by its ordinance to say to the jury that the interest of the informer should in no wise invalidate ~~the~~ his credibility- This is a palpable violation of every rule of evidence-
repugnant to reason and the Statute and common law, and outrage upon the jury, and an assumption of power which could only be ~~was~~ exercised by a the supreme Legislative power.

If a petty corporation has power to declare offenses repugnant to the Statute law, and repeal, modify, change, nullify and contradict the rules of evidence, then there is no safety for the rights of the citizen. If there power in this regard is plenary (and upon this idea alone can the ordinance be vindicated) many of the safeguards thrown around the citizen of the state are exposed to the whim, zeal, carelessness and (legal) ignorance of Town and village trustees.

The points of law in the case are here respectfully suggested, because, by reason of sickess in the family of his counsel, the time for appealing to a higher court inadvertently passed by. And the party having thus by this cause alone, and
from any fault of his client, lost his remedy by appeal, he has no other recourse but an appeal to executive clemency. I would state that in a similar case against Callahan, in which he was fined one hundred dollars, will be appealed to the Circuit Court, and it is respectfully suggested that the expenses in that prosecution, and the penalty if he should be guilty under the law will prove ample punishment to be inflicted upon the evidence of an interested informer, who not content with his reward, also claimed his attendance as a witness. This latter case was tried at a day subsequent to the first, which saved it from the unavoidable limitation which barred the appeal in the latter.

Very Respectfully
JamesHarlan Jr
Mar 26, 1864

A copy of the city ordinance is copied in the statement or bill of exceptions in the case vs Gabriel Weitzel which

will be ~~filled~~ pesented for remission. That case is of the same character drifts and tends as the one here presented

J. H. jr

Police Ct of City of Frankfort
Com'th
vs } Petition
John Callahan
for Remission of judgment except costs and Attorneys fee --

Judgment herein referred to, respited for six months
Richard T Jacob
30^th Mch/64

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