No. 21455 | Neb. | Sep 27, 1920
The district court for Douglas county sentenced Fred Gillard to 60 days in the county jail for nonsupport of his wife and child, Gillard applied to the district court for Franklin county for a writ of habeas corpus, alleging that his commitment was illegal. A hearing was had and the petitioner was ordered discharged. Respondent, the sheriff of Douglas county, has brought the case to this court for review. •
A motion to dismiss the petition in error has been filed by the petitioner on the grounds, among others, that an order discharging a prisoner on habeas corpus is not reviewable; that, if such order is reviewable, the proceedings must be taken by the state through the attorney general, or his representative, and cannot be brought by a custodial officer; and that the motion for a new trial was not filed within the statutory time.
1. At common law a judgment remanding or discharging a prisoner in a habeas corpus proceeding was not reviewable. 12 R. C. L. 1256, sec. 74. In this state, however, the right of review in such cases has always been recognized. And ever since Atwood v. Atwater, 34 Neb. 402" court="Neb." date_filed="1892-04-07" href="https://app.midpage.ai/document/atwood-v-atwater-6647655?utm_source=webapp" opinion_id="6647655">34 Neb. 402, where the question appears first to have been raised, this review has been permitted to the state as well as the petitioner. There is no force in the petitioner’s argument that the only right of review in a habeas corpus proceeding, where the prisoner has been discharged, is under section 515 of the Criminal Code (Rev. St. 1913, sec. 9185), on exceptions taken by the attorney general, or. county attorney for. the purpose, of;
2. Was the respondent a proper party to prosecute this case ? It is well ■ established that a public officer entrusted with the custody of a prisoner who is made respondent in a • habeas corpus proceeding has the right to a review of an order discharging the prisoner. State v. Huegin, 110 Wis. 189" court="Wis." date_filed="1901-04-30" href="https://app.midpage.ai/document/state-ex-rel-durner-v-huegin-8186956?utm_source=webapp" opinion_id="8186956">110 Wis. 189, 62 L. R. A. 700; Miller v. Gordon, 93 Kan. 382" court="Kan." date_filed="1914-11-14" href="https://app.midpage.ai/document/miller-v-gordon-7902231?utm_source=webapp" opinion_id="7902231">93 Kan. 382; Davis v. Smith, 7 Ga. App. 192" court="Ga. Ct. App." date_filed="1909-12-10" href="https://app.midpage.ai/document/davis-v-smith-5603997?utm_source=webapp" opinion_id="5603997">7 Ga. App. 192. These cases are in accord with the spirit of our Code provisions.
3. We come now to a consideration of the motion for a new trial. The judgment of the trial court was rendered October 15,1919. The motion for a new trial was filed October 17, 1919. Court had adjourned its term October 16, 1919. The motion was filed within the three-day period prescribed by statute, but not before the close of the term. At a subsequent term the court overruled the motion. On the succeeding day respondent filed a showing that he was “unavoidably prevented” from filing the motion for a new trial during the term at which the judgment was rendered. Whatever may be the sufficiency of the showing to excuse the delay in filing the motion for a new trial, we cannot consider the affidavit for the reason that there is nothing in the' record to indicate that the district court was ever apprised of the facts contained in it. We are therefore not at liberty to review any of the questions which were required to be presented to the district court by motion for a new trial. Tait v. Reid, 91 Neb. 235" court="Neb." date_filed="1912-04-20" href="https://app.midpage.ai/document/tait-v-reid-6660234?utm_source=webapp" opinion_id="6660234">91 Neb. 235.
4. This does not, however, prevent us from passing upon the question whether the district court had jurisdiction to issue the writ in this case. In In re White, 33 Neb. 812" court="Neb." date_filed="1892-01-27" href="https://app.midpage.ai/document/in-re-white-6647513?utm_source=webapp" opinion_id="6647513">33 Neb. 812, this court held that ordinarily habeas corpus proceedings should be instituted in the county where the unlawful, restraint is alleged to exist. In State v. Porter, 78 Neb. 811" court="Neb." date_filed="1907-05-10" href="https://app.midpage.ai/document/state-ex-rel-thompson-v-porter-6657455?utm_source=webapp" opinion_id="6657455">78 Neb. 811, it was held that, when the right of personal liberty makes it necessary, the district court or a judge thereof at chambers may, in the éxercise of a sound
5. But where application is made for a writ of habeas corpus to the dstrict court of a county other than that in which the prisoner is confined, and the officer in whose custody the prisoner is held brings the latter into court and submits to tlie jurisdiction without objection, the prisoner is then under confinement in the county where the action is brought, and the court has authority to inquire into the legality of his restraint. In this case respondent filed an answer and return stating: “That as respondent in this action, he now has the said George Fred Gillard in court, subject to the order of this court.” The judgment of the district court for
6. One other question is presented by respondent which we are at liberty to consider, namely, whether the application states facts sufficient to authorize the issuance of the writ. The application shows that the petitioner was denied a jury trial, and this, although the charge on which he was tried was a felony, being punishable, in the discretion of the court, with a penitentiary sentence. This fact is one which would make the commitment void. Michaelson v. Beemer, 72 Neb. 761" court="Neb." date_filed="1904-12-07" href="https://app.midpage.ai/document/michaelson-v-beemer-6656034?utm_source=webapp" opinion_id="6656034">72 Neb. 761. No copy of the complaint or information filed against the petitioner is contained in the record, and there is no way for us to determine whether he ever was lawfully charged with crime. Under the circumstances, the judgment of the district court must be affirmed.
Affirmed.