112 P. 416 | Or. | 1910
Lead Opinion
delivered the opinion of the court.
Under the provisions of the original constitution cited in the statement of the case, we think there can be little question that this court had no power to issue the writ; that power being vested exclusively in the circuit and county courts. It is also apparent that, since the amendment, while such power may be exercised by this court in its discretion, the authority of the circuit and county courts in that respect is in no manner taken away or abridged. Until future legislation shall change them, the circuit and county courts continue to exist and to exercise the same powers and jurisdiction in respect to writs of this character which they exercised before the adoption of the amendment. Section 2, above quoted, is clear and distinct on this point, while Section 5 distinctly recognizes the continued existence and authority of the circuit court by providing that “no person shall be charged in any circuit court with the commission of any crime, except by indictment.”
Such being the condition, we are now called upon to determine whether the discretion given us by the late amendment should be exercised in this case. It is evident from the nature of the language used, “the supreme court may, in its own discretion, take jurisdiction,” that it was the intention of the framers of this amendment to allow to this court the widest latitude consistent with law and justice in determining whether it would act in any given case. It does not, in terms, invest the court with positive jurisdiction. It permits them to take it, and invests the court with a peculiar discretion to do so or refrain from so doing. It does not stop with the usual formula, “in their discretion,” but goes further and is more emphatic, using the term “in their own discretion.”
We are of the opinion that it was not the intention of the framers of the late amendment to thrust upon this court the burden of hearing, considering, and deciding in the first instance every application for quo warranto, mandamus, and habeas corpus which should be presented to it. Such a construction would overwhelm us with a mass of original business, including the examination of witnesses, hearing arguments of counsel, and considering the merits of the causes presented, which would interfere seriously with those duties for which this court was primarily constituted, namely, the hearing and decision of cases coming here in the usual manner upon appeal. And we are also of the opinion that, before taking jurisdiction in' any of the cases enumerated, we should carefully consider, first, the condition of the business of this court; second, the hardships to the petitioner incident to a denial of the writ; third, whether the petitioner has any plain, speedy, adequate remedy in the circuit court; and, fourth, whether he has a remedy by appeal.
As to the first, it is well known that, at the present time, the docket of this court is greatly congested, and it follows that, if we take jurisdiction of this matter
It does appear from the imperfect record that they appeared in court, pleaded guilty to an offense against the laws of this State, and craved the immediate sentence of the court therefor, and that thereupon the court sentenced them to an indeterminate term in the penitentiary. So far the proceedings seem to have been regular, but the law makes it the duty of the clerk to enter in the judgment the crime for which the defendant was sentenced, and this he has failed to do, so that Roberto and Martinez are in danger of remaining indefinitely in the bastile, unless this inadvertence is corrected. But these gentlemen have several plain, speedy, and adequate remedies. An obvious one is to apply to the court to require the clerk to correct the judgment entry to correspond with the facts. Another is to appeal to this court in the regular way and have the judgment of the circuit court reversed or amended. And a third is to apply for a. writ of habeas corpus before a judge of the circuit court, and find their redress. With all these remedies in other courts open to them, we do not think this is a case wherein this court should exercise the extraordinary jurisdiction conferred by the recent amendment to the detriment of other and more meritorious business.
The petition is denied. Denied.
Concurrence Opinion
delivered the following concurring opinion.
It is urged by the petitioners that the writ of habeas corpus is appellate in its operation, and therefore should
“We regard as established upon principal and authority, that the appellate jurisdiction by habeas corpus extends to all cases of commitment by the judicial authority of the United States, not within any exception made by Congress.”
In Ex parte Siebold, 100 U. S. 371 (25 L. Ed. 717), it is held that it cannot issue the writ as an exercise of its original jurisdiction. In Ware v. Sanders, (Iowa) 124 N. W. 1081, the decision follows these cases because the Iowa constitution gives the supreme court supervisory control of inferior judicial tribunals throughout the state,
The language of this provision of the Constitution clearly indicates that it was not the purpose to place upon the Supreme Court the duty to issue and hear as an original proceeding every writ of mandamus, quo warranto, and habeas corpus, when applied for throughout the state. It “may, in its own discretion,” issue the writ; that is, when, in the opinion of the Supreme Court, there is some necessity for an application to it, and only when there is some reason why adequate and prompt relief may not be obtained in the circuit or county court. To hold otherwise, this court might be burdened with these applications of which, until now, the circuit and county courts have had exclusive jurisdiction, and where under all ordinary circumstances the remedy is complete and prompt. There may often be cases in which it will be necessary or proper that this court shall take original
In the case of Ex parte Ryan, 124 La. 286 (50 South. 161), upon an application to the Supreme Court for a writ of habeas corpus, it is held that the application would not be entertained if the hearing could be had before a court of first instance. In State ex rel. v. Sheriff, 44 La. Ann. 1014 (11 South. 541), it is said:
“Whilst the writ of habeas corpus is one of right, it is not one of course. A party seeking to avail himself of it is not at liberty to select for himself, absolutely, either the time or place for relief or the tribunals through which it is to be obtained. So far from conceding it to be the duty of this court to entertain and act under each and every application' for the writ on which we might legally do so, we are of the opinion that we should abstain from action where this may as well be done in competent lower courts, unless there should be special circumstances in the case making immediate direct action or intervention necessary or expedient.”
State ex rel. v. Sheriff, 36 La. Ann. 855; State v. McColley, 115 La. 406 (39 South. 81). In Commonwealth v. Baroux, 36 Pa. 262, an application for a writ of mandamus (included with habeas corpus in the grant of jurisdiction), it is held that although the Supreme Court has jurisdiction to issue the writ of mandamus, “it is in our discretion to refuse it as an original case, if there be an adequate remedy in another form or before another court.” And the writ was denied because no necessity for making the application to the Supreme Court was shown. In State ex rel. v. Barret, 25 Mont. 112, 117 (63 Pac. 1030), upon a similar application, it is held that there must be some good reason why the application is made to the Supreme Court for such a writ.
*397 “District courts are ordinarily the primary forums, and in them should be commenced special proceedings, unless sufficient reasons exist why resort to the Supreme Court is necessary in the first instance.”
To the same effect are State ex rel. v. Lawrence, 38 Mo. 535, and State ex rel. McIlhany v. Stewart, 32 Mo. 379.
The conclusion is irresistible, that the new jurisdictional provision contemplates that the application to the Supreme Court for any of these writs should only be entertained in case there is some good reason why it cannot be issued and heard by the circuit or county court, which does not appear in this case.
Dissenting Opinion
delivered the following dissenting opinion.
“The interest of the state in the personal liberty of its citizens is primary and proximate, and to secure such liberty to each citizen entitled thereto is one of the most important purposes of government.”
“No rule should be adopted restricting the jurisdiction of this court over the writ of habeas corpus, which has ever been regarded as the safe-guard of personal liberty, except for the most weighty considerations.”
So, too, in Simmons v. Georgia I. & C. Co., 117 Ga. 305, 308 (43 S. E. 780, 781: 61 L. R. A. 739), Mr. Justice Cobb, speaking for the court, observes:
“The writ is as much a palladium of liberty today as it was during the abuses existing in the days of the ancient English sovereigns. It is to the credit of an advanced civilization that the necessity for the issuance of the writ rarely ever arises, but the constitution of this state declares that the privilege of the writ shall never be suspended, and it stands today, as it did in the days of King Charles, to protect and safeguard the liberty of the citizen.”
There is perhaps no other state with a constitution containing a provision similar in language to the one presented. Most, if not all, of the states have provisions in their fundamental laws substantially, as appears in our Bill of Rights, § 23, viz.:
“The privilege of the writ of habeas corpus shall not be suspended, unless in case of rebellion or invasion the public safety require it.”
Under this and like provisions all the states containing such requirements take original jurisdiction of habeas corpus proceedings, and recognize the right to exercise sound discretion in allowing or denying the writ. On page 311 of 117 Ga., page 782 of 43 S. E. (61 L. R. A. 739), in the case of Simmons v. Georgia I. & C. Co., the court observes that “while the writ of habeas corpus is a ‘writ of right,’ it did not, either under the common law or the statute of Charles II, issue as a matter of course, but only on probable cause shown.” To the same effect
“The judicial discretion that is not subject to review on appeal is such an exercise of authority in the mode of proceeding for the enforcement of rights or the redress of wrongs as is reasonably designed, according to fixed legal principles, to promote substantial justice.”
Numerous cases have been reversed by this court on account of an exercise, under some provision of our statutes, of what the trial courts deemed their discretion, among which is Nicklaus v. Goodspeed, 56 Or. 184 (108 Pac. 135).
“Whenever any person is convicted of a felony for which the maximum punishment does not exceed twenty years imprisonment, the court may, in its discretion, sentence such person to imprisonment in the penitentiary without limitation of time, and such person so convicted and sentenced may be paroled for good conduct by the Governor upon such terms and conditions as may seem to him wise, at any time after such person shall have*401 served the minimum period of imprisonment provided for by law for such offense, but such' imprisonment shall not in any event exceed the maximum term provided by law for the crime of which the prisoner was convicted and sentenced.” Laws 1905, p. 318.
It will thus be seen that, under the statute an indeterminate sentence, or sentence “without limitation of time,” can be imposed only where it appears that the accused has been convicted of a felony, the penalty for which does not exceed twenty years’ incarceration in the penitentiary: State v. Smith, 56 Or. 21 (107 Pac. 980). There is nothing in the record before us from which the offense to which defendants pleaded guilty may be ascertained. It may have been for a mere misdemeanor, the penalty for which was a light fine or jail sentence. This question can only be determined upon the return to the writ, which is not before us. The journal entry quoted in the petition, showing the sentence imposed, states no fact or facts from which it may be inferred that a plea of guilty was entered to a felony, and certainly if not to a felony the sentence imposed is absolutely void; no law being provided for such sentence under any other circumstances. The question as to whether the writ should issue should be determined from the record presented.
The object of this amendment, in my judgment, was to reach such cases as the one presented, and thereby avoid the delays incident to an appeal from the county and circuit courts to this court. These delays often work to the prejudice of the state, and at other times occasion great injustice to those unlawfully held in custody. For example, in the case of Isakson v. Stevens, 57 Or. 57 (110 Pac. 398), recently decided, the petitioner, on a charge of felony, was on February 13, 1909, held before a committing magistrate to await the action of the grand jury. A petition for writ of habeas corpus was applied for in the circuit court and denied, but, pending an appeal, the accused was admitted to bail. Owing to the congested condition of our calendar the case was not reached and finally was not determined until August 3, 1910. In that case, under the facts disclosed by the records, the accused deserved to be imprisoned in the penitentiary for a term of years, but after more than 17 months had elapsed the matter was through this court, and although decided against the petitioner, he had not even been tried in the court below. Whether he appeared for trial or, through forfeiture of his bail, escaped punishment, is immaterial for the purpose of this illustration, which discloses the facility with which a criminal through delay may escape justice. No more of the court’s time would have been consumed had the application for the writ been made here in the first instance than was finally required on appeal. Had the amendment under consideration then been in force, and the application brought here in the first instance, the petition, not showing sufficient grounds for the discharge of the accused, would have been denied without delay, and the prisoner,
Manifestly the amendment had some purpose in view when it gave to the people affected the right to apply to this court for a writ of habeas corpus, and this cause, it appears to me, clearly comes within the class of cases thereby contemplated. The argument that it may impose additional burdens upon a long-suffering and overworked court should have no weight. It is not for the courts to say what work should be thrust upon them by the lawmaking department; that is a legislative and not a judicial matter. Like objections were made to the granting of this guaranty of personal liberty before its first royal recognition in the Magna Charta, and especially when, in 1679, the first fully recognized habeas corpus act (31 Car. II, c. 2) was adopted. No doubt it was then anticipated that such courts as were' then existent would be overworked by applications of those claiming to be unlawfully restrained of liberty, and possibly they were, but,
“Whereas great delays have been used by sheriff, gaolers, and other officers, to whose custody any of the king’s subjects have been committed for criminal or supposed criminal matters, in making returns of writs of habeas corpus to them directed, by standing out an alias and pluries habeas corpus, and sometimes more, and by other shifts to avoid their yielding obedience to such writs, contrary to their duty and the known laws of the land, whereby many of the king’s subjects have been, and hereafter may be long detained in prison, in such cases where by law they are bailable, to their great charges and vexations, for the prevention whereof, and the more speedy relief of all persons imprisoned for any such criminal or supposed criminal matters; be it enacted. * *”
This act, when read in full, will be found very complete as compared to those preceding it, and was enacted to cure the abuse of discretion then so common. The conditions leading up to its enactment, and until the final solution of the problem in England by the adoption of the law on the subject, enacted in the reign of George III, are given (15 Am. Eng. Enc. Law (2 ed.) 129), as follows:
“The judges delayed for two terms to deliver an opinion as to how far such a charge was bailable, and when at length they agreed that it was bailable they annexed a condition of finding sureties for good behaviour, which still protracted the imprisonment, the Chief Justice Sir Nicholas Hyde, at the same time declaring that ‘if they were again remanded for that cause, perhaps the court would not afterwards grant an habeas corpus, being*406 already made acquainted with the cause of the imprisonment.’ There were other abuses which came into frequent practice which in some measure defeated the benefit of the remedy. Thus the party imprisoning was at liberty to delay his obedience to the first writ, and wait until a second and third, called an alias and pluries, were issued, before he produced the prisoner.”
In the light of history, is it not to be presumed that inconveniences and delays analogous to those above, so frequent even under our advanced system of procedure, moved the people of the state in the adoption of a constitutional provision on the subject, and should we not pause long before establishing a precedent, the effect of which is to recognize a continuance of those conditions ? From their inception the circuit courts, as well as county courts of this state, have had jurisdiction of these matters, yet it is a well-known fact that such applications have constituted but a very small percentage of their cases, due principally to the fact that one is rarely held in custody under a void judgment. The writ is used only to correct jurisdictional errors, resulting in a wrongful restraint of liberty, from which it must necessarily follow, that, should we take jurisdiction of this class of cases, applications therefor would rarely be made. In nearly every state in the union its use is invoked by appellate courts, and jurisdiction thereof taken in cases analogous to the one under consideration, yet applications therefor have been comparatively few. Then why anticipate a rush of petitions to this court and an overcrowding of our docket from that source of litigation, if recognized? It is reasonable to assume that our people, knowing our state to be unlike others in this respect, in that unusually long delays must be encountered before a writ of habeas corpus may be heard in the Supreme Court, deemed it an important step forward, and accordingly intended by amendment to grant to our citizens the same
The holding to the effect that these prisoners may apply to the trial court for a correction of the record to conform to the facts, is novel as well as new in its application. As before shown, it is not within our province to assume any state of facts not disclosed by the record. Nor can facts be determined without first granting the writ and procuring a return thereto. To invoke this rule is to condemn without a hearing; it is petitio principii, an assumption of the very thing to be established, and which the petitioner seeks to have investigated. It also occurs to me that it is an anomalous precedent to hold it to be the duty of one alleging himself to be imprisoned illegally, or without authority of law, first to move to have the record corrected in such manner as will change an unlawful detention into a lawful imprisonment, but such I take to be the effect of the holding, that an “obvious” remedy would be for the prisoners “to apply to the court to require the clerk to correct the judgment entry to correspond with the facts.”
Again, there is a broad distinction between conditions justifying the granting of the writ of habeas corpus cases and cases appealed from a judgment in the usual trial of one accused of a crime, where only questions of procedure are invoked, and where, as a rule, jurisdictional matters are seldom presented, while in habeas corpus proceedings only the jurisdiction of the court is determined, such as, the right to retain the prisoner in custody under a void law or a void judgment. The distinction between these two classes of cases, and the reason why the same rule should not be invoked in one as in the other, I think manifest. As observed by the court in Simmons v. Georgia I. & C. Co., 117 Ga. 308 (43 S. E. 780, 781: 61 L. R. A. 739) : “Questions growing out of an alleged
Furthermore, no unusual inconvenience could result from the granting of the writ. The court where the sentence was imposed and the prison where the parties are confined are in this city. This, in addition to the showing presented, disclosing a restraint of the prisoners under a void judgment, affords .an additional argument in support of the prayer of the petition, the denial of which, in my judgment, is an abuse of discretion. I can conceive of many cases where the discretion of the court would properly be exercised in denying the petition; for example, cases more civil than criminal in character, illustrations of which are controversies between divorced parents over the custody of children, and instances requiring possibly an examination of witnesses, alluded to in the concurring opinion, which class the appellate courts in some states, in the exercise of their discretion, have either remanded to the courts below or dismissed the writ, on account of the insufficiency of the showing made, or of the lack of importance of the cause presented. As a rule these cases are treated as being on the same plane as many of the injunction, mandamus, and quo warranto proceedings; but the distinction between them and those of the character here under consideration, with but few exceptions, is fully recognized by the courts and the confusion respecting the points here involved, I believe to be due to a failure to recognize this distinction; accordingly personal liberty is reduced to the same level as property and official rights. I do not question that, in each of the cases relied upon in the opinion of Mr.
In conclusion, I deem the result announced by my associates a long stride towards a suspension of the writ of habeas corpus; it is a step backward in the progress of the law, and, I think, clearly inconsistent with the reason and spirit of the habeas corpus provision of the judicial amendment to our constitution. The writ should issue and the final outcome be determined upon the showing made thereby.
