3 Wyo. 566 | Wyo. | 1891
Petitioner, as appears from the pleadings and evidence on file in this cause, was indicted for, tried, and found guilty of, the crime of grand larceny at the November, A. D. 1890, term of the district court for Laramie county. The judgment and sentence of said court in pursuance of such finding was afterwards rendered, and a mittimus issued to respondent, which it is claimed is in accordance with such judgment and sentence. Respondent admits that he restrains petitioner of his liberty in the county jail of Laramie county, in the state of Wyoming, but alleges that such restraint is by virtue of said proceedings above recited and said resulting mittimus, and is lawful. Petitioner claims that such restraint is unlawful, and that petitioner is entitled to his discharge for several reasons.
We understood it to be admitted in the oral argument that only jurisdictional questions can be raised in this proceeding. Whether so admitted or not, such is clearly the law. Lack of jurisdiction of thesub-ject-matter, jurisdiction of the person, or jurisdiction to render the particular judgment assailed, seems to include all cases which render a judgment void or subject to collateral attack in habeas corpus. There is an apparent exception to this rule in some special cases, provided for by section 753 of the Revised Statutes of the United States, but this section has no application here. Jurisdiction of the person may be waived. Neither jurisdiction of the subject-matter nor jurisdiction to render the judgment can be conferred by waiver. Por illustration, a party, though not arrested or subject to arrest, or ha v-ing a good plea in abatement if arrested, may nevertheless voluntarily go to trial in a court of a justice of the peace, and thus submit himself to that jurisdiction. He may then be tried by the justice on any charge of crime which the justice has jurisdiction to try, and be adjudged, on conviction, to suffer any penalty fixed by law for the punishment of such crime which the justice has jurisdiction to impose. But, although the party thus submits his person to the jurisdiction of the justice of the peace, that court may not try him for a felony, or sentence him to be imprisoned in the penitentiary, or to be hanged.
The first reason assigned by petitioner for holding the judgment of the court below to be void, and for his discharge, is that he was arrested in Nebraska, and forcibly and against his will abducted from that state into the state of Wyoming, by a deputy-sheriff of Laramie county, Wyo., acting by the. ad vice of the prosecuting attorney of said county, assisted by 10 other persons, on November 7, 1890, these persons all being armed with rifles and revolvers. This is not denied by respondent, and it appears from the pleadings and evidence on file that it is substantially true, and that this abduction was followed by the arrest of petitioner in Wyoming on November 9, 1890, by another officer, by virtue of a warrant issued by a justice of the peace of said county, upon complaint in dueforro. chargingpetitioner with grand larceny. Thereupon he was by this last-mentioned officer delivered to respondent, the sheriff and keeper of the jail of said county, who has ever since detained him in said jail. On November 22, 1890, the grand jury presented to the district court of said county an indictment, charging petitioner with grand larceny. On the 3d day of December following he was arraigned on said indictment, to which he pleaded not guilty, and went to trial. He interposed no plea to the jurisdiction of the court at this time. He first seeks to take advantage of his forcible abduction from Nebraska to Wyoming by asking of the trial court the following instruction to the jury: “Ninth. The court instructs you that, in order to give this court jurisdiction to place the defendant upou his trial under a criminal charge, it is necessary that he be arrested under a legal process, in conformity to the laws of the state of Wyoming. Therefore, if you find from the evidence that the defendant was arrested by William C. Lykins, in the state of Nebraska, without having_ obtained a requisition for his extradition from said state, and forcibly and against the will of him, the said defendant, by the said William C. Lykins, as deputy-sheriff of Laramie county, Wyo., without any warrant for his arrest, abducted the said defendant from the said state of Nebraska, then, and in that case, the court instructs you that this court has not acquired legal jurisdiction to try him u'uder
No right of one accused of crime is violated by bringing him to trial in the jurisdiction where he is charged as having committed the crime. He can be brought to trial nowhere else. One other case is cited to the poin t under disc ussion, — the only one in any degree analogous to the case at bar. It is State v. Jackson, 30 Fed. Rep. 258, decided in the United States circuit court at Chattanooga, Tenn. Jackson was a citizen of the state of Illinois, and had never been in Tennessee. Consequently, he had never fled therefrom. This much was conceded. It was further found by the court that Jackson was illegally, and in violation of the constitution and laws of the United States, extradited from the state of Illinois, and brought within the jurisdiction of the courts of Tennessee by the respondents in said cause and by the state of Tennessee, its officers and agents, and was at the time of the hearing, in violation of the constitution and laws of the United States, detained and held in custody. L. P. Elliott, who illegally abducted Jackson, was the duly accredited agent of the state of Tennessee. Jackson was discharged. In the case at bar,it appears from the pleadings and evidence, that petitioner, although a citizen of the state of Nebraska, had recently before his abduction been in Wyoming, had committed a felony there, and had fled to Nebraska. No agent or officer of the state of Wyoming had been concerned in his abduction, or, so far as appears, had any knowledge of it. The cases cited do not establish the exception to the rule of law that courts will not regard the means employed to bring a fugitive from justice within the jurisdiction where heeommitted the crime. Neither does the case at bar fall within the exception as stated. The fact that a deputy-sheriff was of the party effecting the irregular and'illegal abduction does not
The indictment charges petitioner with the larceny of a number of neat cattle in Laramie county, Wyo., on the 10th day of October, 1890. Of this he was found guilty, and the value of the cattle stolen assessed by the jury at $600. It appears that his arrest in Nebraska, of which he complains as illegal and unauthorized, took place on the 7th day of November following. How long he kept the cattle in Wyoming, or by what route he removed them, or how hot the pursuit was, does not appear. When a felony has been committed, it is the right and duty of any person or persons, whether officers or not, to make the arrest. In case of their overlooking state lines, it has not been customary to scrutinize their conduct very closely, provided they arrest the right man. The opinion in Dows’ Case, supra, is so pertinent, so reasonable, so fair, so just, and so moderate and judicial in tone, that we cannot refrain from quoting it at considerable length. It is, withal, by Chief Justice Gibson, of whom it has been remarked (and the remark was quoted with approval by the learned attorney for the petitioner) that a greater judge never lived. Dows was arrested in Michigan, without warrant, though a warrant for his arrest was in the hands of other parties. The following is from the opinion : “Had the prisoner’s release been demanded by the executive of Michigan, we would have been bound to set him at large., As regards all but federal stipulations, the states of the Union are independent sovereignties, andi the only right which one of them has to claim.the arrest of a fugitive from its justice in the territory of another is conventional. It is created by treaty stipulation in the federal constitution, and it can be exercised only in the way therein pointed out. But the governor of Michigan, so far from resenting the prisoner’s arrest, had put a war
We cannot think that the matter in question here was fairly and fully represented to the governor of Nebraska, or fairly and fully understood by him as to all the facts, when he wrote his letter of May 19, 1891. The following remarks from a South Carolina case are so directly in point that we quote at some length. Similar remarks from courts of the highest authority might be quoted at indefinite length, but we will not take the time and space. With this quotation, which has our unqualified approval, we close our citations of authorities upon this branch of the case. The language is that of Chancellor Hae-pbr in State v. Smith, 1 Bailey, 291. Discussing the Case of Smith, the chancellor says: “But the ground principally relied on for his discharge is the irregularity in the manner of his arrest. He was arrested by means of a vio- ■ lation of the laws and jurisdiction of the state of North Carolina. I have already said, in general, that when an individual charged with an offense is before a magistrate, the sole inquiry is, does there appear sufficient cause for his commitment, or binding him to his answer? No matter what irregularities have occurred in his arrest, or whether he have been arrested or no, if it appear that the laws have been criminally violated, it is the duty of the officer to take measures for vindicating them by a prosecution. It is certain that no conceivable violation of the laws of our own state in procuring a prisoner’s arrest could authorize the discharge of one who is duly charged. Though a house or a city had been fired in order to arrest him as he escaped from the flames, or any cruelty or injustice had been practiced towards him, the law would say,‘Those who have been guilty of such enormities must answer for their own acts, and the prisoner for his.’ I am still to seek for the principle or the authority which will make a difference when the arrest has been made by means of a violation of the laws of another jurisdiction. The prisoner is charged with a felonious violation of the laws of this state. It is answered that other persons have been guilty, in relation to him, of an outrageous violation of the laws of another state, and therefore he ought to be discharged. I perceive no connection between the premises and the inference. * * * But suppose the case of a foreign state. There is no offense in trying, and, if he be guilty, convicting, the subject of a foreign government who has been guilty of a violation of our own laws within our jurisdiction. * * * In the case we are considering the prisoner is found in our jurisdiction, in consequence of a lawless act of violence, exercised upon him by individuals. The true cause of offense to the foreign government is the lawless violation of its territory. But a
Matters of interstate comity can be arranged only by the states themselves, through their executive departments. When Wyoming’s executive has occasion to call upon this court forits co-operation in responding to the reasonable demands of a sister state, founded upon the principles of interstate comity, the court, as at present constituted, will not be backward in going as far as the furthest in doing all that can be justly .required by the most liberal interpretation of those principles. But in this court it is a mere question whether the court below acted within its jurisdiction. It may be that circumstances can arise, such that considerations of the public weal and that harmony which should always characterize the intercourse between the sister states of the republic would make it advisable for the trial court to waive its jurisdiction and release an accused person, though he were the veriest land pirate that ever raided from abroad across our borders or marauded within them; but we hope that no state will ever conceive it to be necessary to the vindication of her offended dignity, on account of the criminal violation of her jurisdiction and her laws by any individual or individuals, to ask for the release of a convicted felon. Until such request comes to us through the proper channel, we have no occasion to act upon it. No person held to answer a criminal charge, either before or after conviction, has any right to invoke the principles of interstate comity to shield him from trial when charged with crime, or from punishment when convicted.
On December 11,1890, the judgment and sentence of the trial court in this cause-was rendered in the following words: “It is found that the defendant, William Kingen, is guilty of the crime of grand larceny, as charged in the indictment herein. It is therefore considered, ordered, and adjudged by the court that the-said William Kingen be imprisoned in the state penitentiary of the state of Wyoming, to-wit, the Illinois state penitentiary, located at or near the city of Joliet, in the state of Illinois, and kept at hard labor for the period of eight years.” It is-contended on behalf of the petitioner that this judgment and sentence is void, and the legislation upon which it is founded is boldly attacked as unconstitutional and void. This legislation consists in part of paragraph 4 of the act of congress of June 16,1880, of the tenor following: “That the legislative assemblies of the several territories of the United States may make such provision for the care and custody of such persons as may be convicted of crime under the laws of such territory as they shall deem proper, and for that purpose may authorize and contract for the care and custody of such convicts in any other territory or state, and provide that such person or persons may be sentenced to confinement accordingly in such other territory or state, and all existing legislative enactments of any of the territories for that purpose are hereby legalized: provided, that the expense of keeping such prisoners shall be borne by the respective-territories, and no part thereof shall be-borne by the United States.” Pursuant to appropriate legislation by the legislative assembly of the territory of Wyoming, authorized by this act of congress, if not included in the general grant of legislative power, the proper contract was made-for the care and custody of the convicts of the territory of Wyoming in the Illinois state penitentiary at Joliet. This legislation is in force in the state of Wyoming, if at all, by virtue of section 3 of article 21 of the constitution of the state of Wyoming, which is as follows: “Sec. 3. All laws nowin force in the territory of Wyoming, which are not repugnant to>
Without taking time and space to quote these dieta at length, let it suffice to say that they are founded upon two quotations given from high authorities, and reiterate the doctrines of those quotations in various forms, and assume to fit and apply them to the case then under discussion, — the case of Territory v. Nelson. The first of these quotations is from U. S. v. Booth, 21 How. 524. It reads: “No judicial process, whatever form it may assume, can have any lawful authority outside of the limits of the jurisdiction of the court or judge by whom it'is issued; and any attempt to enforce it beyond these boundaries is nothing less than lawless violence. ” If judicial process, in the sense here used, included a mittimus, committing a convict to prison, after conviction, to serve a sentence, the doctrine announced would have overturned England’sfavorite policy of establishing penal colonies. The convict sentenced to those colonies was uniformly sent beyond the jurisdiction of the court that sentenced him to serve his term of imprisonment. The learned associate justice, after making this quotation, at once proceeds totheconsideration and attempted explanation of the case of Ex parte Karstendick, 93 U. S. 396, a case utterly inconsistent with the quotation from ü. S. v. Booth, if tha t included such a mittimus within its scope. Kar-stendick was convicted of a crime in the United States district court for the district of Louisiana, and sentenced to imprisonment in the state penitentiary at Moundsville, W. Ya. The sentence was sustained by the supreme court of the United States, and he served out his term there. But this point is too plain for argument. But a small proportion of the state courts which sentence convicts to imprisonment in the respective state penitentiaries have a state penitentiary located within their respective jurisdictions. There may not be a penitentiary within their district, and is not in the greater number of districts. The remark quoted is good law, but is sadly misapplied. The other quotation is from Cooley, Const. Lim. p. 129: “The legislative authority of every state must spend itself within the state.” This is a terse and comprehensive statement of the territorial extent to which state laws, proprio vigore, take effect. It is immediately followed, in the connection from which it is taken, by a statement of a» number of instances in which state laws are enforced beyond the limits of the state, on principles of comity. No state expressly limits the effect of its laws to its-own boundaries. The wider the extent to which their force is extended by the operation of the principles of interstate comity, the more gratifying it is to the state, and the more harmonious and satisfactory becomes the intercourse of the-states with each other. JudgeCooley says on the page already cited: “Upon the principle of comity, however, which is a. part of the law of nations, recognized as such by every civilized people, effect is given in one state or country to the laws of another in a great variety of ways.”' To such an exteiit are the doctrines and practice of comity carried even between the United States and foreign states that we have a code of laws, both civil and criminal, enacted by congress, and enforced in foreign countries over citizens of the United States by our consular courts. See Rev. St. U. S. §§ 4079-4129. This civil jurisdiction extends to unlimited amounts. Id. § 4093. The criminal jurisdiction is to try persons charged with crime according to the laws of the United States, and to-punish by imprisonment in the foreign country, (Id. § 4101;) or to inflict the death penalty there, (§§ 4102, 4103.) And this jurisdiction extends not only to countries, with which we have treaty relations, but also largely to .countries not inhabited by any civilized people, or recognized by any treaty with the United States. Id. §■ 4088. True it is, as claimed, that the sentence of transportation under British law was executed by transportation in British-ships .to another portion of British dominions, and the sentence always included a-term of years to be served there. That it was a necessary result that this term should be served out at any particular-place is not true. Generally no particular place was specified in the sentence of transportation, except at a certain colony. Neither w¿s it a necessary result of the sentence that the specified time-was served out anywhere within the British dominions. The ticket-of-leave man went practically where he chose. Many of them became practically mere exiles. Simple banishment was a punishment al
It is urged that by sending con victs to another state for imprisonment they are placed beyond the reach of the protection of the law of the state, which it is the duty of the state to furnish them ; and especially beyond the reach of the pardoning power. This is not true as a matter of fact, nor as a proposition of law. By virtue of treaties and international comity, the federal government secures the enforcement of its laws for the punishment of its criminals in foreign countries. By the same treaties and the same comity it secures theenforcementof its laws for thepro-tection of the criminals in their rights. Butthismayall besuspendedby war. The statescannot make treaties, but they can make contracts, and by virtue of these contracts and the operation of interstate comity they secure the punishment by imprisonment of their convicts in sister states. By the same contracts and the same comity they secure the protection of the convicts in their legal rights. No pardon fails to accomplish its purpose. No legal action for the benefit of the prisoner of any of the proper authorities of the state so sending her convicts to the sister state fails to accomplish its purpose. The suggestion that the protection of the prisoner is imperiled by his being imprisoned in a state diSerent A*om that of his conviction and sentence is unfounded in fact. It is uncalled for, ungracious, and unjust to both contracting states. And the operation of these contracts and these principles of comity are in no danger from the occurrence of war. The states cannot declare war. We have considered the subjects of transportation and banishment to show the plenary power of legislative authority to enact laws inflicting those penalties. The statute in question in this case does not go to the extent of in dieting either of those punishments in the ordinary sense of the words. The penalty imposed by the judgment and sentence in this case does not include banishment in any sense of the term. If it includes transportation in any proper sense, it is in a very modified sense, it is not transportation beyond seas, or to a foreign shore, or to an unknown clime. It is not to a dependent province or colony. It is merely removal to a place of imprisonment in a sister state in the Union, where the individual is under the full protection of the constitution and laws of the United States, and of the state of Wyoming. It is such a transportation as is in accordance with the most recent and most advanced views of public policy, and with the practice and custom of the states and territories in providing for the proper care and custody of their criminals and insane. It is for the benefit of the criminal and the unfortunate, as well as the state, that this beneficent policy and practice and custom should be sustained; and when objection is made on behalf of a convict it is uniformly found to be, as in this case, not for the purpose of avoiding incarceration in an inferior, uncomfortable, or unwholesome prison, and for securing for the term of his sentence a better prison, or one where the confinement would be less irksome, but for the purpose of securing immunity from punishment for crime whereof he has been duly convicted.
It further appears from the evidence on file that on the 3d day of September, 1891, —that being a regular day of the May, A. D. 1891, term of the court, that tried the petitioner on the charge of grand larceny, —the following order was made and duly entered of record in said court: “Now, on this day comes into open court the said William Kingen, in person and by his attorney, Henry St. Raynor, and also comes the county and prosecuting attorney of said Laramie county; and the Said county
The late case of O’Brien v. Barr, 49 N. W. Bep. 68, is directly in point. It was decided by the supreme court of Iowa, May 28,1891. Plaintiff was sentenced by the district court of Wapello county, at its January term, 1884, to imprisonment in the penitentiary at Ft. Madison, at hard labor, for a term of eight years. Afterwards, by virtue of an order of the executive council, which had charge of such matters, he was transferred to the penitentiary at Anamosa. He was not selected by this council by name, but was selected, with others to the number of 20, by the warden, under the order of the executive council. He brought his action by petition in habeas corpus, claiming that the “orders of the executive council are without authority of law, and void, and do not mention or bind the petitioner, and that plaintiff can only be confined in the penitentiary of the state as sentenced, and that the sentence cannot be modified or contradicted by order of the executive council.” The court says: “Theimprisonmentand its duration could alone be determined by the court. But fixing the particular penitentiary in which the petitioner should be confined is not a part of the judgment. The effect and duration of confinement is all that was judicially determined by the judgment. The conviction was for burglary, and the punishment provided by the statute is, ‘ He shall be punished by imprisonment
It is further urged on behalf of petitioner that the state penitentiary cannot be located at Laramie City; that it is located at" Rawlins for 10 years by the constitution. Without stating the various constitutional and statutory provisions necessary to an understanding of this question, it is sufficient to say that it is-apparent from this record that there is a state penitentiary in operation, at Laramie, prepared to receive convicts. Whether it is a state penitentiary de jure, and whether there is any other state penitentiary of Wyoming in operation, and prepared to receive convicts, we cannot, in this proceeding, properly inquire. From the foregoing considerations we find (1) that the court below acted within its jurisdiction; (2) that its judgment and sentence is valid; (3) that such judgment and sentence has not been changed or modified, and that the change of the location of the state penitentiary, and consequently of the place of imprisonment of petitioner, is not a change ormodification of his sentence; (4) that the restrain t of his liberty by the defendant and respondent is legal. The petitioner is therefore remanded to the custody of the defendant and respondent, the sheriff of Laramie county.
26 Tex. App. 121.