60 Wis. 349 | Wis. | 1884
This is an original petition by J. W. Crow for a writ of habeas corpus, and for his discharge from imprisonment in the county jail of the county of La Fayette, and from the custody of the sheriff of said county. The petition was filed and the writ issued on the 18th day of March, 1884. .By the petition, and the return of Nelson Boioer, the sheriff of said county, the following facts of record appear:
On the 14th day of December, 1883, the petitioner was sentenced by the circuit court of La Payette county, on four several convictions for misdemeanors, to pay fine and costs, and, if not paid forthwith, to be imprisoned in the county
It may be noted here that there is nothing in this petition inconsistent with the fact that the petitioner had been im
The return to the first writ on this petition was simply that he, the said Nelson Bower, “imprisons and restrains said John W. Grow, as aforesaid, under and by virtue of four certain certificates of conviction and sentence, issued out of said court by the clerk thereof, December 14, 1883, in four separate actions of record in said court,” etc. The certificates referred to are appended to the return the same as to the petition. On the hearing of this petition and return the •honorable court commissioner discharged the petitioner on the 11th day of March, 1884.
The decision of this court upon the case made here, upon the petition and the return of the sheriff to the writ, must exclusively depend upon the question whether the commissioner had jurisdiction of the first writ to hear and decide the case made by the petition and return. The argument of this case was especially able on the part of the learned counsel of the petitioner, and, on behalf of the state by the learned assistant attorney general, Mr. Chynoweth, who not only made a very cogent argument, but presented and commented upon a very large number of cases, which he claimed
“A prisoner held by valid process may be discharged by. habeas corpus by reason of some omission or event occurring since the issuing of it.” Wood on Mandamus, etc., 174. Many of the cases cited by the learned assistant attorney general, and many other cases, affirm this jurisdiction on habeas corpus.
In Trotter v. Mitts, 6 Wend., 512, in a suit on á judgment, the defendant pleaded nul tiel record and discharge from imprisonment. Held, that if discharged by reason of payment or satisfaction of the judgment, such discharge was final and conclusive.
In Hoose v. Sherrill, 16 Wend., 38, the defendant was served by summons when he was a nonresident and not amenable to summons. The case went to judgment of fine and imprisonment for thirty days unless the fine was paid. Held, that a judge at chambers had jurisdiction in habeas corpus to issue the writ, but that the former judgment was final, because the court had jurisdiction to issue a summons in a proper case, and whether it was a proper case could only be inquired on certiorari. So, here, the commissioner had jurisdiction to issue and hear the writ of habeas corpus for such cause, and such cause could only be reviewed on cer-tiorari.
In Rex v. Collyer, Sayers, 44 (26 Geo. II.), defendant was
In Cleek, v. Comm., 21 Grat., 717, the conviction and sentence were in July, for ten months. Defendant escaped in September, was recaptured in January, and remained in prison until May, ten months from date of sentence. On habeas corpus and refusal to discharge, an appeal was taken to the court of appeals on error, and it was held that the three months he was out of prison on escape must be added to his sentence, because his escape was Ms own fault and crime. It is said in the opinion that the sheriff had the right to continue his imprisonment without any further order than the original sentence, because he was cognizant of the facts, and if the prisoner desired to have the question decided he could have had a writ of habeas corpus and the facts inquired into, and that the court would have jurisdiction in such a case. Here the same or a similar question was involved on the first habeas corpus, viz., whether the term of imprisonment had expired.
In State v. Chancellor, 1 Strobh. (S. C.), 347, the defendants were sentenced to receive twelve lashes, but were pardoned on condition that they leave the state and not return. They returned to the state. They were then brought before the court for resentence. The question was raised whether this was the proper practice in such cases. It was held that it was, because the defendants had the right to be heard on the question whether they should be punished after the day had passed by; and that they might show reasons for their return to the state, such as that they were kidnapped and brought back by force, or other reason why the condition of
In State v. Smith, 1 Bailey (S. C.), 283, the defendant was pardoned on condition of his leaving the state. He left the state and then returned, and, after staying some time, he returned to the foreign state, and while there was arrested and brought back, and reimprisoned on the old sentence. He was then brought before the chief justice at chambers on habeas corpus, and was remanded on resentence by the court, on rule to show cause. On the hearing before the chief justice on habeas corpus there was proof by affidavits of the prisoner’s voluntary return to the state. The opinion of Chief Justice Harper is appended to the case, affirming his jurisdiction in habeas corpus in such a case.
In People v. Potter, 1 Parker’s Crim. R., 47, the defendant was sentenced to imprisonment, and pardoned on condition of leaving the state, but returned and was rearrested, and remanded by the general sessions of New York city to serve out the remaining part of the term. The jurisdiction of the general sessions was denied, and Judge Edmunds held, by authority of Judge Bronson, that the prisoner should have been brought before one of the judges of the supreme court, in oyer and terminer, on habeas corpus,
In People v. Porter, 1 Duer, 709, it was held that a judge at chambers had jurisdiction on habeas corpus to discharge or remand an infant, although he had no authority to provide for the future custody of the infant, and the court of chancery only had such authority; but in Wilcox v. Wilcox, 14 N. Y., 575, it is held that the judges then could also provide for such future custody because they succeeded to ■this chancery jurisdiction.
In Haggerty v. People, 53 N. Y., 476, the sentence for robbery had not expired when the prisoner escaped. He was recaptured and brought before the court on information for resentence for balance of the term. Held, on error, that such a proceeding was unnecessary, because, if there was any good cause why the prisoner should not be so reimpris-oned, it could be shown on habeas corpus, when the facts could be inquired into.
In People v. Cowles, 4 Keyes, 38, a judge at chambers discharged a prisoner imprisoned on a fine, on habeas corpus, and admitted him to the jail liberties; the reason for the discharge being that he was entitled to such liberties. Held, on error, that the judge had jurisdiction to discharge the prisoner for such reason, but had no jurisdiction to admit to the jail liberties, that power being only in the court, and the judgment was reversed.
In Ex parte Milburn, 9 Pet., 704, the defendant was under indictment and out on bail, and was rearrested on capias, and discharged from such restraint by habeas corpus. He was then arrested on a bench-warrant for trial. On a second habeas corpus it was held that he was imprisoned the second time on a very different process and cause, and therefore his first discharge was no bar to the second writ. The jurisdiction under the first writ was conceded, and the
In Rowe v. Rowe, 28 Mich., 353, it is held that a common law writ of certiorari may be granted by the supreme court to a court commissioner for the review of his proceedings on habeas corpus to discharge from unlawful restraint infant children, and that this is the only remedy in such a case where the commissioner had jurisdiction, and that, in this case, he had no jurisdiction to order or decree the custody of such children.
In the celebrated McLeod Gase (People v. McLeod), 3 Hill, 650, and in note, the following' principles in respect to habeas corpus are established: (1) When the petition shows a proper case the writ must issue. (2) If the petition states the prisoner is not held in the case made prohibitory by the statute, it must issue, although the records referred to in the petition may show an apparent lawful authority. (3) An upparent authority by judgment and process may not be a real or legal authority, and therefore on the return of the writ this question must be examined and decided, and even if such decision is wrong, it is nevertheless final until reversed on certiorari or error. (4) When the petition claims .and asserts that proceedings in a federal court which resulted in the imprisonment, though apparently authorized and valid, are not so in truth and fact, the writ must issue, and a discharge by a state court in such a case is final. Wharton’s Digest (Pa.), tit. “Habeas Corpus.” (5) The court or judge, having thus acquired jurisdiction, has the power to decide rightly or wrongly, and discharge or remand the prisoner, and all persons must yield obedience to the judgment, and it is final until reversed, even if there has been gross error. 1 Chitty’s Crim. Law, 128; Bacon’s Abr.,
• In McConologue's Case, 107 Mass., 171, a minor enlisted in the army was discharged by a single judge at chambers, and was recaptured by the army officers. Oh second habeas corpus the judge was advised to discharge the prisoner by the whole court, on the ground that his first discharge was final and conclusive on all persons and courts until reversed. This is a full and instructive case, and quotes the Booth Case, in this state.
In Clarke's Case, 12 Cush., 320, a witness was held under an attachment for contempt for disobeying a subpoena. After trial and judgment in the case it was held that he was properly discharged on habeas corpus, although the process was valid, on the ground that, ex post facto to the arrest, there was no legal cause for his detention.
In Feeley's Case, 12 Cush., 598, the sentence was a fine and imprisonment, when the statute only authorized a fine or imprisonment. The prisoner was properly discharged, after the fine was paid, on habeas corpus.
The question may be whether the prisoner was arrested on legal process, or whether he is now lawfully held thereon, by reason of something ex post facto the process. Hurd on Hab. Corp., 326. Habeas corpus against habeas corpus is never allowed except in connection with the writ of certiorari. Ex parte Yerger, 8 Wall., 85; In re Collier, 6 Ohio St., 55.
In Meade v. Deputy Marshal, 2 Wheeler’s Crina. Cas., 569, it wms held that a person imprisoned for the nonpayment of a fine by a court-martial was properly discharged on habeas corpus on the ground that he.had no notice of the proceedings.
The judgment of discharge, not actually void for want of jurisdiction to issue the writ, is a final judgment, and cannot be impeached collaterally. It can only be reviewed on error
These authorities clearly establish (1) the jurisdiction of the commissioner to issue the writ and to hear it; (2) the
The assistant attorney general cited some cases other than the above, which he claimed were adverse to these positions. In In re Buddington, 29 Mich., 412, it was held that a court commissioner had no power to review any proceeding of a court, and that his power under the writ was less than that of a court. In In re Burger, 39 Mich., 203, it was held that a court commissioner had no power to review, on this writ, the proceedings of a court, and had no judicial power, and his judgment was not conclusive. Our constitution, in relation to the judicial power of a court commissioner (sec. 23, art. VII), must be different from the constitution of that state. ”VY<§ have seen that in many of the states, as well as in our own, this judicial power in habeas corpus is plenary, and equal to that of the courts. Spalding v. State of N. Y., 4 How., 21, was a case of imprisonment for contempt. Ex parte liobinson, 6 McLean, 355, was a case of a fugitive from labor, adjudicated to be a slave, and remanded to his master by a commissioner of the United States, under the act of Congress, and attempted to be discharged by a state judge on habeas corpus, and has no application to this ease. In Wright v. State, 5 Ind., 290, the jurisdiction of the
In Yates v. Lansing, 5 Johns., 282, it was held only that courts could not be prosecuted for the penalty of the statute for rearrest of prisoner after his discharge on habeas corpus, and that the statute only referred to officers. In this case it is said that there had been a long contest since the Chamber Case, in Cro. Car., 168 (James I.), between courts of chancery and of law, over the right of interference by the law judges with the prisoners of the chancery courts. This controversy, no doubt, affected the decision of such cases in the early courts of New York, while the old court of chancery existed there.
In Cable v. Cooper, 15 Johns., 152, the imprisonment was on civil process, and the discharge under the statute for the relief of poor debtors. He was arrested again in a suit on the former judgment, and failed to plead his discharge. Then, on habeas corpus, and a subsequent discharge thereon, and in a suit against the sheriff for an escape, on appeal it was held that the last discharge by a court commissioner was void because the prisoner was held on civil process. Many things are said in the opinion in this case, in which there was another dissent by Judge Spenoeb, not applicable
In Comm. v. Deacon, 8 Serg. & R., 12, the defendants were tried on an indictment of sixteen counts, and convicted by the jury on nine of them, and the jury said nothing as to the other seven. The court issued a commitment, without rendering judgment on the verdict, to hold the defendants for trial on these remaining counts. The court was the mayor’s court of Philadelphia, of special and limited jurisdiction. On habeas co?pus the prisoners were remanded, and on error to the supreme court this judgment was affirmed; the court holding that the mayor’s court had jurisdiction by the indictment, and that, although the defendants had been acquitted by the verdict, the imprisonment was not without jurisdiction, and erroneous only, and could not be reviewed on habeas corpus; and also that the court had jurisdiction of the habeas corpus by the petition, and the judgment thereon was final, because if the prisoners ought to have been discharged instead of remanded, it was error only, which might be reviewed. Many other cases might be cited to the same effect, that the judgment on habeas corpus on the same cause of commitment, where jurisdiction is had by the petition, is final and conclusive. In the above case, DusrcAN, J., said in his opinion: “You need not use any argument to prove that the plaintiffs cannot be tried on this indictment;” and then insisted that this was one of the facts or questions of law to be decided in that case, and there was jurisdiction for that purpose. So, in this case, the question of fact, or, perhaps, the mixed question of law and fact, whether the petitioner had served out his sentence, and that it had expired by limitation of time, was within the jurisdiction of the commissioner to try and determine, and if he decided wrongly it could be corrected only on certiorari.
It is somewhat strange that the learned judge who ordered
But conceding that' the first petition did show what is now shown on the return to this writ, that the sheriff had voluntarily allowed the petitioner to run at large during the whole of the aggregate term of the sentences, and that he
In Wright v. State, 5 Ind., 290, the prisoner was on trial for murder, and during the trial the jury was discharged by the expiration of the term of court. On habeas corpus he was remanded, and it was held on certiorari that the judge had jurisdiction of the writ to discharge or remand, and did right to remand him, because he might plead his first jeopardy in bar of another trial and thereby be relieved from imprisonment.
In State v. McClure, Phil. Law (N. C.), 492, the sentence was to pay a fine and costs, and be imprisoned until paid, indefinitely. The sheriff allowed the prisoner to go at large oh his parol. He did not pay, and the solicitor had him arrested on a ca. sa. On motion before the court he was discharged, and on writ of error or appeal the supreme court reversed the order; not on the ground that he was properly rearrested on the sentence and had been improperly discharged, but because he was arrested on a nevo process. Comm. v. Keniston, 5 Pick., 420. The sentence was ten days’ solitary confinement, and two year’s at hard labor, on October 6, 1825. On October 26,182T,'he was sentenced to imprisonment for another crime. Held, that the second sentence was void because before the first sentence had expired by limitation of time. The term of every sentence runs from its date. Prince v. State, 1 Am. Crim. R., 545. The day of the sentence is the first day of imprisonment, whether actually in prison or not, and it is presumed that he was. Wharton’s Orim. Pr. & Pl., 925. - In Nigotti v. Colville, 14 Cox Orim. Cas., 263, it was held that a sentence for one calendar month expires, by its limitation, on the day preceding that day which corresponds numerically, in the next succeeding month, with the day on which the sentence was passed, and that the place in which the prisoner is to be confined is no part of the sentence and may be omitted.
There is still another question arising from the cause of the failure of the actual imprisonment during the time or whole term of the sentence, of much importance, and that is, whether a prisoner can be rearrested and imprisoned after such term has expired, when such failure was not the fault or crime of the prisoner himself. In Ex parte Clifford, 29 Ind., 106, it is held that a recapture after the term can be made only in case of escape by the fault of the prisoner, or criminal escape. The right of recapture after the term depends upon whether the escape was the fault and wrong of the prisoner himself. 1 Chitty’s Crim. Law, 421; 1 Bishop on Crim. Pr., 120-129. In Hollon v. Hopkins, 21 Kan., 638, the prisoner escaped on his way to prison. lie was recaptured after the three years of his sentence had expired, and it was held lawful, because he failed to be imprisoned by his own wrong, and that unless such failure was so caused his sentence had expired by its own limitation. In Cleek v. Comm., 21 Grat., 777, the prisoner escaped from prison. The time of his absence was added to his term, on the ground that he had not suffered his full imprisonment by his own fault and wrong.
And there is still another question, whether, in any case, imprisonment after the term, on a recapture, can be enforced without giving the prisoner the chance to be heard on a rule to show cause, or some mafis&T This seems to have been the practice in all cases I have examined. Comm. v. Haggerty, 4 Brewst. (Pa.), 326; State v. Addington, 2 Bailey, 517; State v. Smith, 1 id., 283; State v. Chancellor, 1 Strobh., 347; State v. Cockerham, 2 Ired. Law, 204; and many others.
The importance of the principles involved, and the able arguments made, and the numerous authorities cited by the learned counsel, and the fact that two of my brethren dissent from this decision, must be my apology and excuse for writing such an unusually long opinion. .
The return to the writ of habeas corpus in this case having been demurred to, we hold that the demurrer was well taken, and order that the same be sustained; and on the hearing of the petition and return, and duly considering the facts and records therein stated, we hold that the judgment of discharge of the petitioner, rendered by the court commissioner in the former case, is final and conclusive upon this court bn this second writ on the same causes of detention, until reversed for errors therein; said commissioner having had jurisdiction of the writ, and lawful authority to determine whether the petitioner was held and imprisoned by the sheriff of La Fayette county, by lawful authority, on the causes of detention made to appear before him, which are substantially the causes of' his present imprisonment. It is therefore
By the Court.— Ordered that the petitioner be and he is hereby discharged from further detention and imprisonment on the same causes thereof, and that he go hence without day.