Long v. Minto

| Or. | Jul 25, 1916

Mr. Justice Harris

delivered the opinion of the court.

1. Both the allowance of the writ of habeas corpus and the procedure governing its prosecution are regulated by statute. "We read in Section 627, L. O. L., that “the writ of -habeas corpus ad subjiciendum is the writ herein, designated, and every other writ of habeas corpus is abolished”; and the same section expressly states that every person imprisoned or restrained of his liberty, “except in the cases specified in the next section, may prosecute a writ of habeas corpus according to the provisions of this chapter, to inquire into the cause of such imprisonment or restraint, and if illegal, to be delivered therefrom.” The next provision of the Code (Section 628, L. O. L.) states that:

“The following persons shall not be allowed to prosecute the writ: * * (2) Persons imprisoned or restrained by virtue of the judgment * * of a competent tribunal of * * criminal jurisdiction. # # ”

The exception specified by Section 628 is further emphasized in Section 631, L. O. L., where we find that upon the filing of a proper petition the writ must be allowed without delay, “unless it appears from the petition itself, or from the documents annexed thereto, that the person for whose relief it is intended is by the provisions of this chapter prohibited from prosecuting the writ.” And, finally, Section 641, L. O. L., provides that:

“It shall be the duty of the court or judge forthwith to remand such party if it shall appear that he is legally detained in custody: * * (2) By virtue of the judgment * * of any competent court * * of criminal jurisdiction. * * ”

All forms of the writ of habeas corpus have been abolished by statute, except the single one named in Section 627. The allowance of the writ and its prosecution are regulated by statute. The right to prosecute the writ is open to any person whose liberty is restrained if he is not imprisoned or restrained by a judgment of a competent court of criminal jurisdiction. If it appears from, the writ that the person is one of those excluded by the statute, then the writ cannot be allowed; or, if the court subsequently finds that the person for whose relief the writ is intended is one of those who are prohibited from prosecuting the writ, then the proceeding must be dismissed and the party remanded.

2-5. The return to the writ contains a copy of the paper which has been called the commitment. The replication admits that the warden holds the commitment, but the petitioner claims that it is not a legal commitment, because neither the journal of the Circuit Court where the judgment was rendered nor the commitment itself was signed by the circuit judge. The petitioner, however, cannot successfully maintain his contention. The judge is not required to sign the journal of the Circuit Court, nor is it his duty to sign the commitment. The records of the Circuit Court include a journal: Section 582, L. O. L. The “journal” is defined by Section 584, L. O. L., as a book “wherein the clerk shall enter the proceedings of the court during term time, and such proceedings in vacation as this Code specially directs.” Section 591, L. 0. L., makes the clerk the custodian of the records and files of the court. A judgment is given by the act of the court in pronouncing sentence upon a person convicted of a crime, and when the judgment is given “the clerk must enter the same in the journal, stating briefly the crime for which the conviction has been had * * ”: Section 1578, L. O. L. The authority for the execution of a judgment like the one involved here is likewise found in the Code. Section 1593, L. O. L., provides that:

“When a judgment, except of death, has been pronounced, certified copy of the entry thereof upon the journal must be forthwith furnished by the clerk to the officer whose duty it is to execute the judgment; and no other warrant or authority is necessary to justify or require its execution.”

We read in Section 1594, L. O. L., that:

“When the judgment is imprisonment in the penitentiary, the sheriff must deliver the body of the defendant, together with a copy of the entry of judgment, to the keeper of such prison.”

The judgment is rendered when the judge performs the judicial act of pronouncing sentence, and a memorial of that judgment is made when the clerk performs the ministerial act of writing the entry in the journal: 23 Cyc. 835. The judge does his duty when he renders the judgment. The clerk discharges his duty when he enters the judgment in the journal. Having entered the judgment, the clerk gives a certified copy of the entry to the sheriff, who then delivers the body of the defendant, ‘ ‘ together with a copy of the entry of judgment, to the keeper of such prison.” Every step required by statute was taken from the time of the conviction until the delivery to the keeper of the prison. There is no statute directing the circuit judge to sign the journal or the commitment, and, in the absence of such a statute, he is not required to sign the journal or the commitment; and therefore the Circuit Court ruled correctly in sustaining the demurrer to the new matter in the replication: 23 Cyc. 850. The commitment in the hands of the warden is supported by an active and operating judgment of a competent court of criminal jurisdiction, and consequently A. M. Long is a person who, in the plain and unambignous language of Section 628, L. O. L., “shall not be allowed to prosecute the writ.” Moreover, the writ should not have been allowed because on no theory does the petition comply with Section 630, L. O. L.

The writ of habeas corpus cannot be used to determine whether a person who is lawfully confined in the penitentiary is entitled to talk privately with an attorney. If a convict when in prison has the right claimed by the petitioner, it cannot be enforced by a writ of habeas corpus, but must be asserted in some other proceeding.

The judgment of the Circuit Court is affirmed.

Affirmed.

Mr. Chief Justice Moore, Mr. Justice McBride and Mr. Justice Bean concur.