107 N.J. Eq. 160 | N.J. Ct. of Ch. | 1930
The petitioner then averred and charged that the indictments and warrants by virtue of which he was arrested and deprived of his liberty, were illegal and void, and of no effect whatsoever, for the reasons (a) that the grand jury of the April term, 1930, was regularly discharged on July 25th, 1930, and thereupon ceased to be and to have any existence as a part of the court of oyer and terminer or to have any power as a grand jury of Ocean, or power to perform any of the duties or to exercise any of the powers and prerogatives of a grand jury, especially the power to find and return indictments; and the justices of the supreme court and the court of oyer and terminer are, after the discharge of such grand jury, without legal power, authority or jurisdiction to reinstate a grand jury and invest it with the powers which it had after it was summoned, sworn and organized and before its discharge; and that the attempt to reinstate the grand jury and reinvest it with the powers it had had before its discharge *164 was null and void, and of no effect; and that, consequently, any and all indictments upon a return by the said alleged grand jury, after July 25th, 1930, were null and void; (b) that the alleged order of the court of oyer and terminer, extending the term of the alleged grand jury and continuing the April term of such court after the close of September 15th, 1930, was invalid and void, because the justice and the court were without jurisdiction or power to make and enter the order; and, consequently, any indictments found and returned by that grand jury subsequent to September 15th, 1930, were invalid and void; (c) that the court of oyer and terminer, and its subordinate body, the grand jury, had no jurisdiction of the subject-matters contained in the indictments and of the persons therein named, and had no jurisdiction to find any indictment whatsoever or to return the same into court after July 25th, and subsequent to September 15th, 1930.
The petitioner also averred that he was unjustly restrained of his liberty by reason of the alleged indictments and warrants issued thereon and by virtue thereof, in that he had (a) been held to answer for an alleged criminal offense without a presentment or indictment by a grand jury, in violation of Art.I, § 9 of the Constitution of New Jersey; and (b) deprived of his liberty without due process of law, in violation of § 1 ofthe Fourteenth Amendment of the Constitution of the UnitedStates, and he prayed that the matter might be inquired into and an order made discharging him from further detention on account of the indictments and warrants aforesaid.
The writ of habeas corpus ad subjiciendum is a common law writ, confirmed and regulated by statute, which did not create, but came in aid of, the jurisdiction. The writ issued *165
out of the court of chancery, king's bench, common pleas and exchequer in England. In re Thompson,
Allen, J., in his opinion in People v. Liscomb,
This is equally the law in New Jersey.
Thus it appears that the decisions in this state (In reThompson) and in New York (People v. Liscomb) run along parallel lines. In fact, that the writ is given by the common law and not by statute, and that chancery is fully invested with the common law jurisdiction, is settled beyond dispute.
The power of the chancellor to grant a writ of habeas corpus
was by the common law the power to issue the writ out of the court of chancery. In re Thompson, supra (at p. 235). It is a high prerogative writ. In re Thompson, supra (at p. 240);Peltier v. Pennington,
In the case of Peltier v. Pennington, supra, Hornblower, C.J., speaking for the supreme court, said (at p. 315): "After giving this case all the consideration which the summary nature of the proceeding will admit of, and under all the light which the numerous cases cited, and the very able arguments of counsel have shed upon the subject, I find myself bound by law to remand the prisoner. In doing so, it is not my intention to intimate any opinion upon the various points that have been discussed respecting the legality and regularity of the proceedings on the part of the plaintiffs. I wish to leave the defendant at liberty, without prejudice by anything now said, to apply at bar, if he thinks proper to do so, for his enlargement on those grounds. But in my opinion, this is not a proper case for the discharge of a defendant out of custody, upon a writ of habeas corpus. Whether this defendant is lawfully or unlawfully imprisoned, does not depend upon any settled and fundamental principles of law; but upon rules and questions of practice that have arisen in the progress of an ordinary suit at law, which are under the control, and ought only to be settled at the bar of the court in which the suit is depending. The doctrine *167 contended for by the defendants counsel, if once established, would soon draw into discussion and decision upon habeas corpus at chambers, a very great proportion of the ordinary litigation in civil suits. Every man conceiving himself improperly arrested upon mesne or final process, or entitled to his discharge upon the ground of some mistake, irregularity or laches of the adverse attorney, would at once sue out a habeas corpus for his enlargement. In short, it would lead to utter confusion in the prosecution of suits, and bring into conflict the different tribunals and officers of justice. We should be called upon in this way, not only to settle the law and practice in suits depending in the supreme court, but to interfere with the business and decide upon the rules and practice of the courts of common pleas. Not only so, but the justices of this court would be appealed to on habeas corpus, to determine upon the sufficiency of affidavits for bail, and the legality or regularity of discontinuances and other interlocutory proceedings in other courts. I do not wish to restrict the use of this valuable writ; but we must not suffer our partiality for a proceeding so justly dear to freeman, as is the writ of habeascorpus, to beguile us into an abuse of it. We must not apply it to cases it was never intended to reach; and in which the well settled rules and principles of the common law, as administered in our courts, have furnished sufficient guards, against the unlawful imprisonment of the citizens. It is true, the defendant is restrained of his liberty, and it may be, that he is improperly restrained. But in this case it is not by force or violence; nor yet by mere pretense or color of law. It is upon process, by which, and for a cause of action for which, all other matters being right, he may be lawfully imprisoned. The only questions are, whether the writ was issued with legal and technical regularity; and whether the defendant, under all the circumstances of the case, was properly arrested: questions, the court out of which the writ issued, is perfectly competent to decide, and which, the legal principle is, it will decide when called upon to do so according to law." *168
In The State v. Sheriff of Middlesex,
Why the learned Chief-Justice referred to a civil proceeding I am unaware, unless it was that the Peltier Case and the case of the Sheriff of Middlesex were civil proceedings, and for greater certainty he referred to them as such. It is true, I think, that all he said of those cases refers with as great, if not greater, force to criminal cases. In fact, many of the other cases from this state cited in this opinion are in criminal proceedings in our courts.
In David v. Blundell,
In Selz v. Presburger,
In People v. Liscomb (New York Court of Appeals),
In Patterson v. State,
In that case it was insisted that the indictments against the petitioner were not found by a legally organized grand jury, the question being that the court of common pleas as constituted, was not that provided for by law. The decision *170 was against the petitioner for the writ, the court remarking (atp. 333), that the rule seems to be that the character of a defacto officer, so long as the court had jurisdiction over the person and subject-matter of the adjudication, cannot be questioned upon this proceeding, citing Church on HabeasCorpus, §§ 356, 357, 369.
This last mentioned case was appealed (Patterson v. State,
The writ of habeas corpus lies where imprisonment is illegal and no other remedy is available to secure release therefrom. As in the case of other extraordinary prerogative writs, the writ ofhabeas corpus will not ordinarily be granted where there is another adequate remedy by appeal or writ of error or otherwise.29 Corp. Jur. 17. While want of jurisdiction is ground for relief by habeas corpus, this is subject to the rules as to discretion in the issuance of the writ and the rule against interference with pending proceedings where there is an adequate remedy by trial and appeal or error in ordinary course. Where the court has general jurisdiction of the cause and the person, error in the determination of the questions of law or fact upon which its jurisdiction in the particular case depends, is error in the exercise of jurisdiction, and in accordance with the general rule, affords no grounds for habeas corpus. Ibid. 32. Where an attempt has been made to charge an offense of a kind over which the court has jurisdiction, mere inartificiality in pleading or defects or irregularities in, or insufficiency of, indictment, information or complaint constitute no ground for relief byhabeas corpus, because under such circumstances the detention is not without jurisdiction and is therefore not illegal although it may be erroneous. Relief for error or irregularity must be had by appeal, writ of error or other proceedings for *171 review, or by application to the trial court in which the charge is pending. Ibid. 41. Habeas corpus is a collateral attack on the judgment under which the prisoner is held. Accordingly, where the trial court had jurisdiction of the offense and of the person of the defendant, and power to render the particular judgment or sentence in proper cases, habeas corpus will not lie upon the ground of mere errors or irregularities in the judgment or sentence rendering it not void but only voidable. Ibid. 51.
In People v. Hayes,
When a trial is had at a special term it will be presumed to be rightly called. Dodge v. State,
In Ex Parte Yarbrough,
In In re Lancaster,
In re Hall,
The above quotations largely deal with final judgments or sentences of a criminal court, but by analogy their doctrine is applicable on principle to the facts of this case; in fact, this case is much stronger for non-interference on habeas corpus, when that writ is sought for the purpose of declaring interlocutory proceedings, indictments and warrants of arrest based thereon, to be null and void and for the discharge of the person indicted and arrested. Those questions, as we have seen, are for the trial court, or the supreme court in this state oncertiorari.
After indictment found process is issued to bring in the accused to answer it. An indictment may be preferred against him in his absence, since were he present he could not be heard before the grand jury against it. After indictment found it may be certified and removed with all the proceedings thereon from any inferior court of criminal jurisdiction into the courts of king's bench (supreme court in New Jersey), which is the sovereign ordinary court of justice in causes criminal; and this is frequently done to consider and determine the validity of indictments and the proceedings thereon, and to quash or confirm them, if there is cause, c. 4 Bl. Com. [*]320. *174
At the present time the practice is for the court to issue a bench warrant for the arrest of the accused, and a warrant of commitment reciting the fact of indictment and describing the crime. * * * The issuing of a bench warrant is a mere ministerial act, for the performance of which it is not necessary that the clerk should possess judicial powers conferred on him by law or delegated to him by the court. 16 Corp. Jur. 386.
In the case at bar the Ocean oyer and terminer had jurisdiction over the offenses alleged against the petitioner herein, and acquired jurisdiction over his person by his apprehension on the warrant. The case is therefore one for review, not for habeascorpus.
From the foregoing cases it appears that the question of the validity of an indictment is one always for the trial court, or, on review in the court above, and is not ground for the issuance of a habeas corpus. The decisions in this state are to the effect, as appears above, that on habeas corpus the validity of an indictment will not be determined. As the issuance of a bench warrant upon an indictment is a ministerial act, the warrant itself is one which is issued as of right on an indictment found to bring in the accused, and is in no sense a prerogative writ. Thus it appears that the court of chancery of New Jersey (or any court) on habeas corpus ad subjiciendum is not empowered to pass upon the validity of an indictment found by a grand jury in the court of oyer and terminer.
This being the law, I am constrained to the conclusion that the writ of habeas corpus should not be awarded in this case, because it clearly appears upon the face of the application therefore that its issuance is unwarranted and would be illegal, and, if granted, would have to be denied on hearing. *176
In re Hall was a writ of habeas corpus in this court, bringing up the legality of the confinement in the state prison of the petitioner, who was committed by the Hudson oyer and terminer, and Vice-Chancellor Buchanan held that where the court has power or jurisdiction to render the particular judgment, though such power is wrongfully exercised, the judgment is only voidable and can be avoided only by direct appeal, *177 and remanded the prisoner. This, too, is a case showing that chancery has jurisdiction in habeas corpus ad subjiciendum. And as to that there is no doubt.
Another case of importance, not cited by the applicant, should be adverted to, lest it be thought by some that the denial of a writ of habeas corpus in the case at bar might indicate that the proceedings In re Hague,
By the terms of our Habeas Corpus act (Comp. Stat. p. 2638 § 1 subdiv. 2), it is provided that the following persons shall not be entitled to prosecute such writ:
"Persons committed or detained by virtue of the final judgment or decree of any competent tribunal of civil or criminal jurisdiction, or by virtue of any execution issued upon such judgment or decree, unless such judgment or decree be founded upon contract; but no order of commitment for any alleged contempt, or upon proceedings as for contempt, to enforce the rights or remedies of any party, shall be deemed a judgment or decree within the meaning of this section; nor shall any attachment or other process issued upon any such order be deemed an execution within the meaning of this section."
The contempt proceedings in the Hague Case were taken to enforce the asserted rights and remedies of the legislature.Habas corpus was the appropriate and lawful remedy to test the right of the legislature to proceed against Mayor Hague, who sued out the writ. *178
Now, I desire to mention the case of In re Thompson,
Let the prayer of the petition be denied, and the application for a writ of habeas corpus be dismissed. *179