Edward Douglass White

“ As, in view of this distinction, it clearly results that the determination of the plaintiff in error to abandon, under the order of the court, one or the other of the two writs of error, could not have validated the writ not abandoned if it was not authorized by law, it must follow that the election to which the order of the court submitted the plaintiff in error was not real, and therefore afforded no basis for the refusal of the court to determine the validity of the writ of error pending before it and to decide the case if it deemed it had jurisdiction. ”

“ As under the statute it is indisputable that there was jurisdiction and the duty to exert it unless the conditions existed which authorized a direct writ of error from this court, it follows that the dismissal by this court of the direct writ for want of jurisdiction affirmatively determined that there was jurisdiction in the court below, and error was committed in not exerting it unless by some neglect to avail of proper procedure, or because of some line of inconsistent conduct, the right to invoke the jurisdiction of the court below was lost. ”

“ As it is obvious that the acts made absolutely criminal by the second clause are acts which may or may not have been accomplished as the result of exerting in the pretended capacity an authority which there would have been a lawful right to exert if the character had been real, and not assumed, it results not only that the conflict which we have indicated would arise from adopting the construction claimed, but the error of such contention as applied to the first clause is conclusively demonstrated. ”

“ It is, moreover, to be observed that there is not the slightest suggestion that there was a want of knowledge of the crime which was charged or of any surprise concerning the same, nor is there any intimation that any request was made for a bill of particulars concerning the details of the offense charged. ”