In Re Murphy

This matter is before the court upon application for a writ of habeas corpus after judgment of conviction, and only one point is presented for our consideration. The petition alleges that on Saturday afternoon, December 18, 1920, a portion of the testimony of one Fred A. Smith and the whole of the testimony of one Henry Heidelberg was taken as a part of the trial of the defendant. It appears that on said day when the hour of noon arrived the court mentioned such fact and petitioner’s counsel stated: “We make no objection to finishing with this witness.” At that particular time the witness Fred Smith was being examined. After the conclusion of the testimony of Fred Smith it appears that Henry Heidelberg, a witness for the defense, was examined; that no objection was made to the examination of the witness Heidelberg, but that petitioner’s counsel did examine said witness. The verdict of the jury and the judgment of the court were entered upon a judicial day. The contention, however, here is made that because the court took testimony or a portion of the testimony during a nonjudicial day that the whole proceeding is void. The law appears to be well settled that upon a petition for a…