8 Wyo. 392 | Wyo. | 1899
Lead Opinion
(after stating the facts as above).
A number of questions arise in this case, none of which have been passed upon by this court. Some of them
Counsel for the defendant contend that the district judge having adjudicated the question of the legality of plaintiff’s imprisonment upon the same facts, this court ought not to again consider it; that the plaintiff might have come to this court by petition in error and should be required to avail himself of that remedy. All the authorities agree that there is no appeal from a hearing upon habeas corpus unless the right is conferred by statute. In many habeas corpus cases, as, for instance, where the custody of children is involved, it is without doubt an appropriate method of obtaining the opinion of the court of last resort. In cases like the present, where the petitioner is imprisoned and other proceedings are awaiting the decision of the questions, the necessary delays incident to a review by petition in error make it subject to serious objections, and if there is no other remedy entirely inappropriate and inadequate. We do not deem it necessary to decide in this case, however, whether proceedings in error are authorized by our statutes. For we think that our habeas corpus act, when considered in connection with the constitutional provisions bearing upon the question, clearly contemplates that the writ shall issue and a hearing be had, when upon the showing of the petitioner he would be entitled to relief, notwithstanding the fact that the writ may have been refused, or may have been issued and afterward dismissed, upon a hearing by another judge. It is said that ‘ ‘ by the great preponderance of authority,
Brown on Jurisdiction, the latest test-book to which we have access on the subject, says: “A denial of the petition is not a bar to the second writ; but in some States the petitioner must show whether the question has been passed upon by any of the courts. The doctrine of res adjudicata has no application to this proceeding except where the statute provides for an appeal, which is the case in some States.” And in the note he cites Hawes on Jurisdiction, Section 181: “A decison under one writ of habeas corpus refusing to discharge a person restrained of his liberty is no bar to a second writ by another court or officer. In re Perkins, 2 Cal., 424; Ex parte Ellis, 11 Cal., 223-225; Matter of Ring, 28 Cal., 251; Yates v. People, 6 Johns, 416; In re Snell, 31 Minn., 110; Bell v. State, 4 Gill, 303; Ex parte Kaine, 3 Blatchf., 2, 5; Bonnett v. Bonnett, 61 Iowa, 200; Ex parte Foster, 5 Tex. App., 643; Ex parte Robinson, 6 McLean, 356; Ex parte Campbell, 20 Ala., 93; Ex parte Lawrence, 5 Binn., 304; People v. Brady, 56 N. Y., 185. A decision on habeas corpus is not appealable or subject to review; the doctrine of res adjudicata has no application to such a case, but it seems that a discharge under a writ of habeas corpus by a court of competent jurisdiction, being in favor of personal liberty, is final and conclusive, and a rearrest under the same charge is unlawful. Mc Farland v. Johnson, 27 Tex., 105; Matter of Ring, supra; Lea v. White, 4 Sneed, 73; People v. Fancher, 1 Hun, 28; In re Curley, 34 Iowa, 185; Hammond v. People, 93 Ill., 89; In re Blair, 4 Wis., 526; Perry v. Mc Lendon, 62 Ga., 601; Ex parte Pattison, 56 Miss., 162; Weddington v. Sloan, 15 B. Mon., 152.”
Unquestionably the matter may be regulated by statute provided the statutory regulations do not infringe upon the constitutional right to the writ. But the clear intention of our statute is to preserve the right to repeated
If a former adjudication is to bar a second writ, the latter part of the subdivision providing for setting out the facts of such former hearing is useless and absurd, and in reason it must be presumed that the subdivision would end with the requirement that the petition should state that there had been no such former adjudication. The same considerations apply to subdivision 5 of the same section; “ It must also state whether application'for the writ has been made to and refused by any court or judge, and if such application has been made, a copy of the petition in that case, with the reasons for the refusal thereto appended, must be produced, or satisfactory reasons given for the failure to do so.” The requirement that the facts of such previous hearing or the reasons for such refusal, must be set out, necessarily implies the power and the duty of the court or judge, to whom the second application is made, to consider and pass upon the facts of such previous hearing or the reasons for such refusal. These sections are also especially' persuasive of this view in connection with the fact that no other method of review is provided for in the act itself. And this conclusion is further fortified by the fact that the act provides in what cases the writ may be refused, and those in which a former adjudication has been had is not one of them. But it is permitted to be refused only when the application is made to a more remote court or judge and no sufficient reason stated for not making the application to the more convenient court or judge;
In view of all these considerations; the evident purpose of the constitution that the writ shall be conveniently obtained shown in conferring original jurisdiction upon all courts and judges of the State; the provisions of the statute itself; the office of the writ, to furnish to the citizen summary relief where he is unlawfully deprived of his liberty; the failure of the habeas corpus act to provide for any proceedings in error and the entire inadequacy of such proceedings in many cases; and the prevailing opinion and practice of the courts of the country where the matter is not otherwise regulated by statute; we think' the power and duty of this court and its judges to consider such second applications and in proper cases to issue, and have a hearing upon, the writ, can not be seriously questioned.
There was formerly much controversy whether, and to what extent, the judgment of a court imprisoning a person for contempt could be collaterally attacked by means of the writ of habeas corpus.
The writ is not in the nature of, nor is it to be used as a substitute for, proceedings in error. A finding of decision of the inferior court, no matter how erroneous, if it does not affect its jurisdiction, is not subject to attack in this collateral proceeding. The office of the writ is to determine the legality of the particular imprisonment, and the facts to be considered in determining that question are jurisdictional facts. If upon a consideration of such facts, it appears that the court exceeded its jurisdiction • in making the order, the petitioner will be discharged upon habeas corpus, and it is not material that, the questions might have been brought to this court by petition in error. In re Boulter this court issued the writ and carefully considered all the points presented, although, as the court say, < ‘ They might all have been raised by proceedings in error without resorting to habeas corpus. ’ ’ 5 Wyo., 329. The distinction is tersely stated in Neilson, Petitioner, 131 U. S., 184. “The distinction between the case of a mere error in law and of one in which the judgment is void is pointed out in ex parte Siebold, 100 U. S., 371, 375, and is illustrated by the case of ex parte Parks as compared with the cases of Lange and Snow. In the case of Parks there was an alleged misconstruction of a statute. We held that to be a mere error in law, the court having jurisdiction of the case. In the cases of Lange and Snow there was a denial of a constitutional right. ’ ’
Our habeas corpus act provides, “ It is not permissible to question the correctness of the action of a grand jury in finding a bill of indictment, or a petit jury in the trial of a cause, nor a court or judge when acting in their legitimate province, and in a lawful manner,” There are
It is aptly said in Ex parte Degener, 17 South Western, 1113 (Texas Appeals), “ But jurisdiction is of two kinds, first, the power to hear and determine the particular matter, and to render some judgment thereon; and secondly, the power to render-the particular judgment which was rendered. The idea of the early courts seems to have been that jurisdiction of courts consists entirely of the former of these powers.” In Neilson, Petitioner, 131 U. S., 184, it is said, “A party is entitled to a habeas corpus not merely where the court is without jurisdiction of the cause, but where it has no constitutional authority or power to condemn the prisoner.”
In a Washington case the prisoner was committed for a failure to pay certain costs adjudged against him as the prosecuting witness in a criminal prosecution. The supreme court on original application for habeas corpus decided that the prisoner was detained for a cause not recognized by the law as ground for the judgment of imprisonment, and therefore not within the possible jurisdiction of any court. In a former case they had held that the courts were precluded from inquiring further when it appeared that the petitioner was committed by a court of general jurisdiction in pursuance of its final judgment for a crime triable by such court. Referring to their decision in that case they say: “As applied to that case enough was said; but in this one the qualification that the cause was triable by the court must be extended to cover the condition, that the court’s judgment was one which, under the law, it had jurisdiction to render.” And they further say that the petitioner was not estopped to maintain the habeas corpus proceeding, by the fact that he might have appealed from the judgment against him. In re Permstick, 3 Wash., 674.
And we think this is the tenor of authority at this time.
In Michigan under the constitutional provisons similar to our own there was a statute providing that no court or officer, on the return of any habeas corpus or certiorari, should have power to inquire into the justice or propriety of any commitment for a contempt made by any court or officer according to law and charged in such commitment as therein provided. In a habeas corpus proceeding the supreme court of that State held that they had authority to inquire into the justice or propriety of proceedings in contempt, only so far as to ascertain whether the court or officer had jurisdiction and was proceeding according to law. But they say “ the' question of jurisdiction necessarily involves an inquiry whether the conduct alleged was in fact a contempt of court and committed under circumstances which authorize the court to proceed to punishment therefor.” In re Wood, 82 Mich., 81. In a Texas case where the witness was committed for refusing to answer, it is said: ‘ ‘ The legality of the commitment, however, depends upon the power or jurisdiction of the court to ask the question. If the question be ‘ improper, ’ if the court interrogate a witness about a matter over which it has no jurisdiction, and about which it has no right to inquire, the refusal of the witness to answer the interrogatory is no contempt of court, and any order or decision which punishes the refusal to answer as a contempt, is void.” Holman v. Mayor, 84 Tex., 668.
In ex parte Irvine and Wagoner the petitioners were called as witnesses for the prosecution upon the trial of twelve defendants upon an indictment for a conspiracy to commit an offense against the United States. The petitioners refused to answer certain questions propounded to them on the ground that it might tend to incriminate them. The court decided that the answers to the ques
In Iowa the petitioner was subpoenaed to come before a justice of the peace to make an affidavit under the provisions of a certain statute. He refused to appear or testify and was committed by the justice for contempt. On habeas corpus a majority of the court' held that he was properly committed, Justice Beck dissenting. But upon the proposition under consideration the court seem to have been substantially in harmony. The majority opinion states it thus: “We can not in a habeas corpus proceeding review the order of imprisonment for contempt, and reverse, unless the act constituting the alleged contempt was such that we can pronounce as a matter of law that it was not a contempt.- If for instance the justice had no authority to subpcena this plaintiff, and was acting without jurisdiction in doing so, then what he did was done merely as an individual, and whatever contempt there was, if it could be called such, not being for judicial authority, would not be such as the law recognizes and punishes. ’ ’ In the dissenting opinion it is thus stated: “Tribunals may decide all questions touching their jurisdiction, but their decisions supporting their jurisdiction are not conclusive, and judgments rendered
In a later case under the same statute the petitioners refused to obey a subpoena, or to testify, and were committed for contempt. By a unanimous court it was decided that the evidence sought was not of a character contemplated by the statute, that the justice was without authority to issue the subpoena, that the petitioners were illegally committed, and they were discharged. Dudley v. Mc Cord, 65 Iowa, 671.
The doctrine thus stated, that in commitments for contempt, and in other cases of alleged illegal imprisonment, the court on habeas corpus may inquire into the power of the committing court to make the order, by investigating the question whether the facts constitute a contempt, or in any case whether the facts confer jurisdiction upon the court to make the particular order, and if they do not, to discharge, is, as we believe, sustained by the great mass of the later cases, either in express terms, or tacitly, by acting upon it. We cite a few of the great number bearing upon the question. In re Dill, 32 Kan., 668; People v. Hackley, 24 N. Y., 75; Ingle v. State, 6 Blackf., 574; ex parte Senior, 19 South. (Fla.), 652; ex parte Gould, 35 Pac. (Cal.), 1112; ex parte Rowland, 104 U. S., 604; ex parte Lange, 18 Wall., 163; ex parte Kellogg, 64 Cal., 526; in re Sontag, 64 Cal., 526; Robb
When and under what circumstances a witness shall be protected in refusing to answer upon the ground that his answers may tend to criminate him has been very often considered, but is necessarily dependent in a great measure upon the facts of each case. The provision of our constitution is that “no person shall be compelled to testify against himself in any criminal ease.” Sec. 11, Art. 1. It has been held in some cases that the“privilege does not apply except to the defendant in a criminal case; that the term ‘ ‘ criminal case ’ ’ can only mean a prosecution for a criminal offense, and that the prosecution must be' against him. This view, after a thorough consideration, was rejected in the leading case of Counselman v. Hitchcock, 142 U. S., 547; and we do not understand that it is contended for in this case. “The object was to insure that a person should not be compelled when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime.”
Neither is it necessary in order to claim the privilege, that the answer, unconnected with other testimony, should be sufficient to convict him of crime. As said by Chief Justice Marshall in Burr’s trial: “This would be rendering the rule almost perfectly worthless. Many links frequently compose that chain of testimony which is necessary
It is contended by counsel for respondent, first, that it does not sufficiently appear that an answer to the question would tend to criminate the petitioner; that, quoting from Wharton’s Crim. Ev. (ninth ed.) 466 “there is no answer which a witness could give which might not be
It is apparent that these considerations are of the utmost weight as affecting the- proper and efficient administration of the criminal law, and it is of primary importance that the rule by which the court is to determine whether the privilege of the-witness shall be allowed shall be correctly ascertained. Quoting again from the section of Wharton above referred to: “To protect a witness from answering, it must appear from the nature of the evidence which the witness is called to give that there is reasonable ground to apprehend that should he answer he would be exposed to a criminal prosecution. ’ ’
In Burr’s trial Judge .Marshall, in stating the rule, said, “When a question is propounded, it belongs to the court to consider and to decide whether any direct answer to it can implicate the witness. If this be decided in the negative, then he may answer it without violating the privilege' which is secured to him by law. If a direct answer to it may criminate himself, then he must be the sole judge what his answer would be. The court can not participate with him in this judgment, because they can not decide on the effect of his answer without knowing what it would be; and a disclosure of that fact to the judges would strip him of the privilege which the law allows, and which he claims. * * * In such a case, the witness must himself judge what his answer will be; and if he say, on oath, that he can not answer without accusing himself, he can not be compelled to answer.” 1 Burr’s Trial, 244, 245.
It is urged in this case that the witness had already
The rule above referred to by which the court must be governed in allowing or denying the privilege is variously stated, but, we think, with substantial harmony. In Richmond v. The State, 2 Iowa, 534, a case relied on by counsel for respondent, the court say: ‘‘When it is evident to the mind of the court that the answer can not accuse the witness, the court should require him to respond to the interrogatory. * * * Therefore, we think, the better and safer rule to be that of compelling a witness to answer when it is apparent to the court that such answer would not interfere with his legal privilege. ’ ’ And Judge Marshall, in Burr’s trial, supra, summarizes the rule thus: “It is the province of the court to judge whether any direct answer to the question which may be proposed will furnish evidence against the witness. If such answer may disclose a fact which forms a necessary and essential link in the chain of testimony which would be sufficient to convict him of any crime, he is not bound to answer it, so as to furnish matter for that conviction. In such a case, the witness must himself judge what his answer will be, and if he say, on oath, that he can not answer without accusing himself, he can not be compelled to answer. ’ ’
The rule is more strongly stated by some of the other cases. As, for example, in re Tappan and Douglas,. 9 How. Pr., 395, the court say: “ The witness alone knows the facts beyond those to be contained in the answer, which may tend to his conviction; the court is not to com
But we think upon reason and authority the more conservative statement of the rule should be adopted, as in Simmons v. Nolster, 13 Minn., 236: “ When it reasonably appears that the answer will have a tendency to expose the witness to a penal liability, or to any kind of punishment, or to a criminal charge, ‘ the authorities’, says Greenleaf, ‘ are exceedingly clear that the witness is not bound to answer.’ 1 Greenleaf Ev., Sec. 451.”
We think the opinion of Judge Taft in ex parte Irvine, 74 Fed., 954, 960, states the rule very clearly: “The great weight of authority, as well as a due regard for the right of the community to have the wheels of justice unclogged, as far as may be consistent with the liberty of the individual, leads us to reject the doctrine that a witness may avoid answering any question by the mere statement that the answer would .criminate him, however unreasonable such statement may be. The true rule is that it is for the judge before whom the question arises to decide whether an answer to the question put may reasonably have a tendency to. criminate the witness, or to furnish proof of a link in the chain of evidence necessary to convict him of a crime. It is impossible to conceive of a question which might not elicit a fact useful as a link in proving some supposable crime against a witness. The mere statement of his name or his place of residence might identify him as a felon, but it is not enough that the answer to the question may furnish evidence out of the witness’s mouth of a fact which, upon some imaginary hypothesis, would be the one link wanting in the chain of proof against him of a crime. It must appear to the court, from the character of the question, and the other facts adduced in the case, that there is some tangible and
Keeping in view this rule and the principle that the court can not compel the witness to disclose what crime the answer would tend to convict him of, as such disclosure would defeat the very object of the constitutional privilege, we proceed to an examination of such facts as appear upon the question. The charge of obtaining the sum of $1,130 from the plaintiff by false pretenses had been preferred against the defendants at plaintiff’s instance. They had been returned from Colorado by a requisition obtained upon his affidavit. At the time set for their preliminary examination the plaintiff failed to appear as a witness. It was again set dawn, and the plaintiff again failed to appear, although he had been duly subpoenaed. Thereupon an information was filed against the plaintiff charging him with compounding the felony of which the defendants were accused, and an attachment issued to bring the plaintiff before the justice as a witness in the preliminary examination of the defendants. The statute prohibiting the compounding of a felony provides that 1 ‘ whoever, having knowledge of the actual commission of a crime of the grade of felony, takes any money or property of another, or any gratuity or reward, or any engagement or. promise therefor, upon any agreement or understanding, express or implied, to compound or conceal such crime, or to abstain from any prosecution therefor, or to withhold any evidence thereof, or do any act to encourage or procure the absence of witnesses or other testimony on the examination or trial of such charge, is guilty of a felony and shall be punished,” etc., prescribing imprisonment in the penitentiary.- (Laws 1890, 142.)
The information filed by the prosecuting attorney charging the petitioner, with compounding the felony, first sets out the commission of the felony, as in the original information, and then proceeds to state that the petitioner “ then and there having knowledge of the actual commis
It is insisted that the affidavit made by the plaintiff in the requisition proceedings shows that his refusal to answer and his claim of privilege was not made in good faith. We understand that counsel do not contend that the privilege of the witness was waived by making the statements contained in the affidavit. Indeed, the authorities are clear upon the proposition, that previous-sworn statements in or out of court do not constitute a waiver and do not deprive the witness of his constitutional privilege when he thereafter claims it. In Emery v. State, 78 N. W., 145, the supreme court of Wisconsin said: “The fact that a witness made previous self-incriminating statements in court on some other trial, or out of court, made no difference. The immunity was complete unless waived by the witness with knowledge of his rights. That right exists under our system of constitutional guaranty to the fullest extent, and is to be protected as rigidly and fairly as any other constitutional right, and not to be weakened or impaired by inventing new methods or ways of evading it.”
In a Georgia case it was argued that as the witness had voluntarily testified, at a previous trial, as to the very matters concerning which he had at the later trial chosen to remain silent, he had waived his privilege; but the court rejected the proposition, saying, “The fact that Lybrend (the witness) had made the waiver at a former hearing before a different jury, and under circumstances necessarily to a greater or less extent unlike these surrounding the last trial, did not preclude him from exercising his privilege at a later stage of the case. He may, on one occasion, have had reasons for speaking out which were entirely satisfactory to himself; and on the next he may have been influenced to keep silent by other reasons which were, in his opinion, equally cogent. These were matters for himself alone to determine. The privilege is in the highest degree personal, and is a sacred one, which the courts should jeal
In Temple v. Commonwealth, 75 Va., 892, it was held that the'fact that the witness testified before the grand jury, and that it was on his testimony that the indictment was found, will not deprive him of his privilege to decline to testify on the trial of the party indicted.” See also Cullen v. Com., 24 Grat., 624, to the same effect.
In Illinois the witness who claimed the privilege had instigated the prosecution and had made a sworn statement upon the back of the information to the effect that the allegations thereof were true, yet his conduct was held not to amount to a waiver of his constitutional privilege when called as a witness upon the trial of the accused. In that case the court said: “The privilege which a witness has. of refusing to give evidence which will criminate himself, is granted to him upon grounds of public policy, and is one of the safeguards of his personal liberty. It can not be regarded as released or waived by some disclosure which he may have made elsewhere and under other circumstances. If the answer to a question put to him as a witness upon the stand might tend to criminate him, it would not tend any the less to do so because he had elsewhere made a statement having such tendency. The question is not as to what he may have previously said in an affidavit, but the question is whether the disclosure he is asked to make as a witness upon the trial of the case will have a tendency to expose him to criminal charge or penalty,” and the court added: “We are of the opinion that his constitutional right in this regard is not abridged or waived by the fact of making the ex parte affidavit indorsed upon the information filed by the prosecuting attorney.” Samuel v. People, 164 Ill., 379.
In this case, however, the crime of compounding a felony, if committed by the witness, must have been committed after the affidavit in the requisition proceedings had been made, and the latter, therefore, can hardly throw much light upon the question of his good faith in declining to testify upon the subsequent trial.
In the Irvine case it was argued by counsel that the privilege was pleaded merely to shield the defendants on trial. The court, however, held that the witness was entitled to the privilege insisted on. That case makes the proposition entirely clear that when the court can determine from the circumstances and nature of the question that the question is incriminating in character, there is then no question of good or bad faith to be considered.
It is suggested that to permit a witness to refuse to testify under such circumstances would be to place the administration of the criminal law in the hands of witnesses, often-influenced by improper motives, thus making convictions difficult and often impossible. It is perhaps sufficient to say that the principle is not a new one. “ It is an ancient- principle of the law of evidence that a witness shall not be compelled, in any proceeding, to
It is said by Starkie to be based upon two grounds, one of policy and one of humanity: “Of policy because it would force a witness under a strong - temptation to commit perjury, and of humanity because it would be to extort a confession by duress, every species and description of which the law abhors.” Stark. Ev., 40, 41. It long antedates our constitution or the Constitution of the United States. It has been acted upon in the courts of this country and England for a great many years, and no such disastrous consequences in the administration of the criminal law have ensued. In practice it has been found that the privilege is .very rarely claimed, and the claim is guarded against abuses as carefully and effectually as the exercise of any other of the unquestioned constitutional rights of the citizen. It must be made under oath and the penalties of perjury attach as in other cases of false testimony if it is not made in good faith; and the witness is not the final judge whether the privilege exists in the particular case, but the decision is to be made by the court. But that it may be abused is not an argument which this court is at liberty to consider, further than to guard against such abuses as far as consistent with the maintenance of the right itself. It is imbedded in the constitution and embodies the wisdom of some centuries of experience upon the subject, and there is no temptation for us to evade or amend it by reason of any considerations of convenience or necessity. The cases of fancied necessity, if there were any relaxation of the principle, would. undoubtedly multiply under the pressure of officers and others naturally, and often very properly, eager for convictions, much' more rapidly than the cases, where the privilege is claimed, have done, under a full and complete, but just and careful, enforcement of the constitutional right.
Concurrence Opinion
(concurring).
I concur in the opinion and conclusions of Mr. Justice Corn.
I regard as entirely immaterial the question whether the order of a district court refusing to discharge a petitioner upon habeas corpus may be brought to this court for review by petition in error or otherwise. Notwithstanding that such an order might be so reviewable, I entertain no doubt whatever of the original jurisdiction of this court in habeas corpus, even in a case where upon the same facts a previous hearing has been had, in the district court, and the petitioner’s application denied. That jurisdiction is granted by the constitution in unmistakable language, and the statute does not, in any way, attempt to restrict it, but on the contrary confirms it. Neither in the constitution or statutes is the jurisdiction or its exercise made dependent upon the absence of any other remedy. It seems, therefore, unnecessary to consider or decide whether the order of the district court refusing to discharge the petitioner could be brought here by some appellate proceeding.
Oases may arise where it would not be deemed expedient for this court to exercise its original jurisdiction where, upon the same facts, and in a similar proceeding, . a district court or judge shall have previously denied the relief sought. But in a case like the one now before us, where the petitioner is imprisoned in execution of a sentence, and that sentence is alleged to be illegal, and especially where such illegality is alleged to consist in thq denial of a constitutional guaranty or immunity, I am
Neither do I esteem it material whether the order of the justice committing the petitioner, was or is subject to review on appeal or error by a higher tribunal.
Where habeas corpus is an appropriate remedy, it matters not that a remedy also existed by writ of error, or by some other appellate proceeding. This principle is well established, and I believe that no authority disputes it.
This doctrine is not to be confounded with that other one well understood and thoroughly established that habeas corpus does not take the place of the writ of error, and that in such a proceeding mere errors of law are not reviewable.
To deny our jurisdiction on the ground that the order of the. justice is or was appealable, would also deny the jurisdiction of the district court in the habeas corpus proceedings, which were entertained by that court.
I have alluded to the principle that habeas corpus does not usurp the prerogative of a writ of error. The decision of the committing court on questions of law or fact within its jurisdiction is conclusive, and however erroneous the proceedings may be they can not be reviewed collaterally on habeas corpus. It is a fundamental principle that errors and irregularities, not jurisdictional, will not be examined or inquired into on such a writ. But questions affecting the jurisdiction of the court and errors which are juiisdictional may always be examined into on habeas corpus; and this rule is as fundamental as the other.
The inquiry in this case, then, is whether the decision of the magistrate that the petitioner was guilty of a contempt in refusing to answer the questions, amounts, if erroneous, to a mere error of law, or whether a question of jurisdic
If the petitioner is protected by a constitutional privilege as he claims, then he had an absolute right, guaranteed by our constitution, to refuse an answer, and his act in so refusing was not in legal contemplation a contempt. The majority of the court are of the opinion, for the reasons stated by Judge Corn, that he was so protected, and could not lawfully be required to answer the questions. The distinction is clearly laid down in Brown on Jurisdiction, and that author pertinently states, in substance, that if a court attempts to deprive a party of a constitutional guaranty or privilege, its jurisdiction is exceeded. It therefore follows that the magistrate was without jurisdiction to commit petitioner, and the order committing him is void; and where that is the case, under all the authorities, he may be discharged upon habeas corpus.
The contempt charged against the petitioner is not that of disorderly conduct, or disobedience of process; nor in refusing to answer without assigning any reason. He claims that he could not do so without incriminating himself, thereby giving a reason, which, if made in good faith, and under such circumstances as reasonably to disclose that the answers might tend to incriminate him, entitle him to be excused from answering.
There exists but little disagreement among the courts of this country respecting the general principles which must govern this case. Whatever differences there are, grow out of the application of those principles. With most of the decisions cited and quoted from in the dissenting opinion of our brother, Mr. Justice Knight, I
Owing to the importance of the questions involved m this hearing, and the fact that they were matters of first impression in this court, I have thought it advisable to thus briefly state'the reasons which have led to my conclusions.
Dissenting Opinion
(dissenting).
I am unable to concur in the opinion and judgment of this court as announced, for reasons, some of whieh, in view of the learned discussion as submitted, at first glance, may appear of little force.
Admitting all. that is claimed for the writ of habeas corpus, its antiquity; that it is in the interest of the oppressed ; that it is in many instances beyond legislation, being a part of the constitutional enactments; still I desire, after making such admission, which is in accordance with the views so ably expressed by my associates, to refer to some of the judges and courts that have pointed out the far reaching effects of the abuse or misapplication of this writ, and of its humane intendments, and illustrating- the abuses to which it has been subjected.
I am of the opinion that in this case, under the circumstances and upon the showing made, the writ should not have issued that has been made returnable and is being considered here; that while it is true that the constitution gives this court and each of its members original jurisdiction in habeas corpus, there is also abundant authority in our statute that confers upon this court power to review on error proceedings in habeas corpus; and that while the latter authority may not take away the original jurisdiction, still in the interest of a uniform practice it should have such a restraining influence as would make this court
I am of the opinion that to entitle a person called as a witness to the privilege of silence, the court must see from all the circumstances of the case, and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend that the evidence may tend to criminate him if he is compelled to answer, and that a review of a ruling upon this proposition of law should not be by habeas corpus.
I am of the opinion that in the case at bar there was not one fact or circumstance surrounding the case, or brought to the attention of the justice acting as a committing magistrate, that would have excused him for giving to the applicant as a witness the exemption claimed; that if there was cause to excuse the witness from answering, such cause was known only to himself and could not avail him. I claim that a fair and reasonable interpretation of the act of the prosecuting attorney in making the affidavit charging the applicant with having compounded a felony, is that he did it for the reason that he believed the applicant while a witness had agreed not to appear and testify, as he was bound to do, and that when he did appear there was not probable cause to make such a charge, and he withdrew it before a warrant had been served or issued upon the affidavit, and that the one fact that such an affidavit was made is not sufficient to excuse the witness from answering or refusing to give any reason for such refusal, the exemption being for the witness and not for his attorneys to claim. Upon these various propositions of law I offer .the following authorities:
The Supreme Court of Washington have this to say of a case in point.:
‘ ‘ It appears that a petition had been presented to one of the judges of the superior court of Xing County, and had been refused, whereupon application has been made to this court. While it is true that the constitution in*431 vested the supreme court with original jurisdiction of habeas corpus, it does not follow that it must take original jurisdiction in cases that have been commenced in the superior court, or before a judge thereof. It is true that this is a writ of high personal privilege, and involves personal liberty,'— a right which the law most jealously guards; but a citizen’s right to liberty is involved in many cases. This question, like all other questions involving his right to liberty, he has a right to have adjudicated by a competent tribunal; and that adjudication, like any other, is presumed to be right until the contrary is made to appear on appeal. It is an adjudication by a competent tribunal, not an adjudication by every competent tribunal, to which the petitioner is entitled. It does not .seem to us that it accords with the orderly administration of the law to allow this application to be made to every superior judge 'and every justice of the supreme court in the State, which would be the practical result, in many instances, of sustaining petitioner’s contention. This, we believe, is not the object of the law. The object in giving every judge in the State original jurisdiction, no doubt was to place the remedy within easy reach of the applicant, and to insure him speedy relief when he was entitled to such, and not to give him a multiplicity of trials. It is true that in some of the States the practice is different, but such practice does not commend itself to oúr judgment, and we can not follow it. When one trial has been accorded the petitioner, he has secured all the rights which the law has guaranteed him. The petition will therefore be denied.” In re Graham, 34 Pac., 931. •
In Ex parte Kearney, 7 Wheaten, 38, the syllabus is as follows:
‘ ‘ This court has no authority to issue a writ of habeas corpus to bring up the body of a person committed to jail for a contempt by the circuit court of the District of Columbia. Jones moved for a habeas corpus to bring up the body of John T. Kearney, now in jail, in the custody of the mar*432 shal, under a commitment of the circuit court of the District of Columbia, for an alleged contempt. The petition stated that on the trial of an indictment in that court, the petitioner was examined as a witness and refused to answer a certain question which was put to him, because he conceived it tended materially to implicate him, and crimi-nate him as a particeps criminis. The objection was overruled by the court, and he having persisted in refusing to answer the question, was committed to jail for the supposed contempt, and for no other cause. Justice Story,of the Supreme Court of the United States, in this case said among other things: ' „
‘ ‘ Upon the argument of this motion, two questions have been made; first, whether this court has authority to issue a habeas corpus where a person is in jail, under the warrant or order of any other court of the United States; secondly, if it have, whether, upon the facts stated, a fit case is made out to justify the exercise of such authority. As to the first question, it is unnecessary to say more than the point has already passed in rem judicatam in this court. In the case of Bollman and Swartwout, 4 C., 75, it was expressly decided upon full argument that this court possessed such an authority, and the question has ever since been considered at rest. The second point is of much more importance. It is to be considered that this court has no appellate jurisdiction confided to it in criminal eases by the laws of the United States. It can not entertain a writ of error to revise the judgment of the circuit court in any case where a party has been convicted of a public offense. And undoubtedly, the denial of this authority proceeded upon great principles of public policy and convenience. If every party had a right to bring before this court every case in which judgment had been passed against him for a crime of misdemeanor or felony, the course of justice might be materially delayed and obstructed, and, in some cases, totally frustrated. If, then, this court can not directly reverse a judgment of the circuit court in a criminal case, what reason is there*433 to suppose that it was intended to vest it with authority to do it indirectly ? ”
“ It is also to be observed that there is no question here, but that this commitment was made by a court of competent jurisdiction, and in the exercise of an unquestionable authority. The only objection is, not that the court acted beyond its jurisdiction, but that it erred 'in its judgment of the law applicable to the cáse. If, then, we are to give any relief in this case, it is by a revision of the opinion of the court, given in the course of a criminal trial, and thus asserting a right to control its proceedings, and take from them the conclusive effect which the law intended to give them. If this were an application for a habeas corpus, after judgment on an indictment for an offense within the jurisdiction of the circuit court, it could hardly be maintained that this court could revise such a judgment, or the proceedings which led to it, or set it aside and discharge the prisoner. There is, in principle, no distinction, between that case and the present; for when a court commits a party for contempt, their adjudication is a conviction, and their commitment in consequence is execution; and so the law was settled upon full deliberation in the case of Brass Crosby, Lord Mayor of London, 3 Wilson, 188.”
Here follows a discussion of the case referred to, and the justice continues: “So that it is most manifest from the whole reasoning of the court in this case, that a writ of habeas corpus was not deemed a proper remedy where a party was committed for a contempt by a court of competent jurisdiction; and that, if granted, the court could not inquire into the sufficiency of the cause of commitment. If, therefore, we -were to grant the writ in this case, it would be by applying it in a manner not justified by principle or usage; and we should be bound to remand the party unless we were prepared to abandon the whole doctrine, so reasonable, just, and convenient, which has hitherto regulated this important subject. We are entirely satisfied to administer the law as we find it, and are all
£ ‘ The argument of- inconyenience has been pressed upon us with great earnestness. But where the law is clear this argument can be of no avail; and it will probably be found that there are also serious inconveniences on the other side. Wherever power is lodged, it may be abused. But this forms no solid objection against its exercise. Confidence must -be reposed somewhere; and if there should be abuse, it will be a public grievance for which a remedy may be applied by the Legislature, and is not to be devised by courts of justice. This argument was also used in the case already cited, and the answer of the court to it is so satisfactory that it would be useless to attempt any further refutation. Upon the whole it is the opinion of the court that the motion be overruled. Writ denied.”
Chief Justice Dixon, of the supreme court of Wisconsin, in the case of the petition of Crandall for habeas corpus, says: “It is conceded that for mere error, no matter how flagrant, the remedy is not by a writ of habeas corpus.”
Judge Cooley, in his treatise on Constitutional Limitations, 4th ed., page 430, says: “ In the great anxiety on the part of our Legislatures to make the most ample provision for speedy relief from unlawful confinement, authority to issue the writ of habeas corpus has been conferred upon inferior judicial officers, who make use of it sometimes as if it were a writ of error, under which 'they might correct the errors and irregularities of other judges and courts, whatever their relative jurisdiction and dignity. Any such employment of the writ is an abuse. Where a party who is in confinement under judicial process is brought up on habeas corpus,. the court or judge before whom he is returned will inquire, first, whether the court or officer issuing the process under which he is detained under jurisdiction of the .case and has acted within that jurisdiction in issuing such process.
A case of interest in this discussion, and one that seems to be persuasive, is that of the People v. Cassels, in the supreme court of New York, 5 Hill, 164. A statement of the facts are in the words following:
‘ ‘ Oassels, the prisoner, was examined- on oath (see the United States v. Wyngall, p. 16) and a witness was examined on his behalf. The testimony tended to establish the following facts: In June, 1842, Oassels was arrested and examined before Justice Briggs on a charge of kidnapping and carrying off one Betsey L. Stafford from the .County of Chenango to the city of Troy, Bensselaer County. After having been kept under examination about a week, he was discharged by the justice for the want of evidence. He was then summoned to appear before Justice Edwards as a witness on the 11th of July, and was then sworn and examined for the purpose, as was said, of eliciting facts upon which a warrant might be issued against one Sally Grant, of the city of Troy, for her alleged agency in procuring the abortion of Betsey L. Stafford, at the city of Troy, which was followed by the death of said Betsey. When Oassels was sworn, he was not examined touching the supposed guilt of Sally Grant, but was required to state what he knew about the transportation of Betsey L. Stafford from Chenango to Kenssel-aer County. When asked the question mentioned in the commitment, he declined answering it, on the ground that it might form a link in a chain of evidence tending to criminate himself. Sally Grant was not before the justice, and it was not alleged that she was in the county of Chenango, or that she had ever committed any crime in*436 that county — the crime imputed to her having been committed in Rensselaer County where she resided. ’ ’
“The judge decided that Justice Edwards acted without authority in the proceeding upon which Cassels was sworn as a witness, for the reason that Sally G-rant was neither before the justice, nor in the county of Chenango at the time, and that it was not alleged or pretended that she had committed any offense in that county, but only in the county of Rensselaer where she lived: and on that ground an order was made discharging Cassels from imprisonment. The district attorney brought this certiorari to reverse the proceedings before the judge.”
And Justice Bronson upon those facts says: “If the justice had authority to inquire into the alleged offense of Sally Grant, the commitment of Cassels could not be impeached upon habeas corpus for any supposed error of the justice in requiring the witness to answer an improper question. A contempt was specially and plainly charged in the commitment, and it was the duty of the judge forthwith to remand the prisoner (2 R. S., 567, Sec. 40). The statute expressly forbids an inquiry into the justice or propriety of the commitment in such a case. (Sec. 42.) If there had been no such statute, it is clear upon principle that the judgment or decision of any court, or officer of competent jurisdiction, can not be reviewed on habeas corpus. If there has been error, the remedy is by certiorari or writ of error. When the return states the imprisonment to be by virtue of legal process, the officer may inquire whether in truth there be any process, and whether it appears upon its face to be valid; and he may also inquire whether any cause has arisen since the commitment for putting an end to the imprisonment as a pardon, reversal of the judgment, payment of the fine, and the like. But he can not re judge the judgment of the committing court or magistrate. (Matter of Clark, 9 Wend., 220; The People v. McLeod, 1 Hill, 404; Sheriff of Middlesex, 11 Ad. & Ellis, 273; 3 Hill, 658, note pl., 30, 31.) The principal, if not the only object of the forty-eighth
“But the prisoner had an undoubted right to show that the committing magistrate acted without authority; and this is so, notwithstanding the commitment recite the existence of the necessary facts to give jurisdiction. Ho court or officer can acquire jurisdiction by mere assertion of it, or by falsely alleging the existence of facts on which jurisdiction depends. How, it turns out, as the judge has found the facts, that this supposed contempt did not happen, as the commitment states, ‘ on the trial of a cause ’ before the justice, nor ‘ upon the examination of one Sally Grant on a criminal complaint.’ Sally Grant was never brought before the justice. She was not in the county of Chenango, nor was it pretended that she had ever committed any offense in that county. The crime which they were attempting to fasten upon her was committed in the county of Rensselaer, where she lived. A justice of the peace is for some purposes a town officer,
The supreme court of California in case ex parte McCullough, 35 Cal., 98, say:
“Habeas corpus is undoubtedly the proper remedy for every unlawful imprisonment, both in civil and criminal cases; but an imprisonment is not unlawful in the sense of this rule merely because the process or order under which the party is held has been irregularly issued, or is erroneous. Process which has been irregularly issued may be set aside by the court or officer by whom it was issued, and erroneous judgments or orders may be reversed on appeal or writ of error. The writ of habeas corpus has not been given for the purpose of reviewing judgments or orders made by a court, or judge, or officer acting within their jurisdiction. To put it to such a use would be to convert it into a writ of error, and confer upon every officer who has authority to issue the writ appellate jurisdiction over the orders and judgments of the highest*439 judicial tribunals in the land. County judges though occupying an inferior position, and exercising an inferior jurisdiction would be, by such a rule, empowered to review and practically reverse the judgments and orders of the district courts, and of the supreme court itself, and also of the federal courts exercising jurisdiction within the State. Establish the doctrine that the judgments and orders of courts may be reviewed on habeas corpus, upon the ground of error, and appeals for the correction of errors may be dispensed with in all cases in which the arrest or imprisonment of persons is allowed. Every criminal action, every civil action in which an arrest is given, and every proceeding for a contempt, could be brought to the supreme court by writs of habeas corpus. Not only that, but as already suggested, inferior tribunals would be called upon to review the judgments of superior tribunals, and tribunals of equal grade to interfere and review each other’s proceedings. Such a rule would render all judicial proceedings amorphous, and lead to the utmost confusion and disorder. It is well settled that habeas corpus can be put to no such use, and that its functions, where the party who has appealed to its aid is in custody under process, do not extend beyond an inquiry into the jurisdiction of the court by which it was issued, and the validity of the process upon its face. (People v. Cassels, 5 Hill, 167; People v. Sheriff of New York, 7 Abbott, 96; Ex parte Gibson, 31 Cal., 619.)”
Chief Justice Cole in the case of Mc Caslin v. Smith, 65 Wis., 93, has this to say:
‘ ‘ But a complaining witness who instigates a criminal prosecution maliciously, and without probable cause, in a sense makes himself party to it. His position is similar to that of a party who signs as surety an undertaking for the return of property replevied. Such a surety becomes a quasi party to the suit, and is liable to have judgment -entered against him, with his principal, on the failure of the latter to maintain his cause, Pratt v. Donovan, 10*440 Wis., 378. We must assume that the defendant in error instituted the criminal prosecution in his own wrong, to harass and oppress an innocent party. There is no hardship in holding that by so doing he submitted himself to the jurisdiction of the examining magistrate.”
The supreme court of Massachusetts in the Whitcomb case, 120 Mass., 118, announce the following doctrine:
“ Justices of the peace are recognized in the Constitution of the Commonwealth as exercising a part of the judiciary power, and are for some purposes courts of record. Const. Mass., C. 3, Art. 3. Thayer v. Commonwealth, 12 Met., 9. Their authority to punish for contempts, at least so far as is indispensable to the orderly conducting of their business, and especially in the case of the refusal of witnesses, after due summons and payment of their fees, to appear and testify before them, has" been generally admitted, and has been regulated by statute from the earliest time of the Commonwealth. St. 1784, C. 28, Sec. 6; Rev. Stats., C. 85, Sec. 33; and Commissioner’s note to Sec. 31; Stat. 1838, C. 42; Gen. Sts., C. 120, Sec. 50; C. 131, Secs. 5, 6; Clark’s case, 12 Cush., 320; Piper v. Pearson, 2 Gray, 120; State v. Copp, 15 N. H., 212; in re Cooper, 32 Vt., 253.”
The supreme court of Pennsylvania, in the case of Passmore Williamson, 26 Pa. Stats, 9, have passed upon several questions here involved. Mr. Justice Black says, at different times, as follows:
“This is an application by Passmore Williamson for a writ of habeas corpus. He complains that he is held in custody under a commitment of the District Court of the United States for a contempt of that court in refusing to obey its process. The process for which he is confined for disobeying was a habeas corpus commanding him to produce the bodies of certain colored persons claimed as slaves under the law of Virginia.”
“ Is he entitled to the writ he has asked for ? In considering what answer we shall give to this question, we $re, of course, expected to be influenced, as in other*441 cases, by the law and the Constitution alone. The gentlemen who appeared as counsel for the petitioner, and who argued the motion in a manner which did them great honor, pressed upon us no considerations, except those which were founded upon their legal views of the subject.”
“It is argued with much earnestness, and no doubt with perfect sincerity, that we are bound to allow the writ without stopping to consider whether the petitioner has or has not laid before us any probable cause for supposing that he is illegally detained — that every man confined in prison, except for treason or felony, is entitled to it, ex debito justitise — and that we can not refuse it without a frightful violation of the petitioner’s rights, no matter how plainly it may appear on his own showing that he is held in custody for a just cause. If this be true, the case of ex parte Lawrence (5 Binn., 304) is not law. There the writ was refused, because the applicant^ had been previously heard before another court. But if every man who applies for a habeas corpus must have it as a matter of right, and without regard to anything but the mere fact that he demands it, then a court or a judge has no more power to refuse a second than a first application.
Is it really true that the special application which must be made for every writ of habeas corpus, and the examination of the commitment which we are bound to make before it can issue, are mere hollow and unsubstantial forms ? Can it be possible that the law and the. courts are so completely under the control of their natural enemies that every class of offenders against the Union or the State, except traitors and felons, may be brought before us as often as they please, though we know beforehand by their own admissions, that we can not help but remand them immediately ? If these questions must be answered in the affirmative, then we are compelled, against our will and contrary to our convictions of duty, to wage a constant warfare against the federal tribunals by firing of y?rits of habeas corpus upon them all the time, The*442 punitive justice of the State would suffer still more seriously. The half of the Western Penitentiary would be, before us at Philadelphia, and a similar proportion from Cherry Hill and Moyamensing would attend our sittings at Pittsburgh. To remand them would do very little good; for a new set of writs would bring them all back again. A sentence to solitary confinement would be a sentence that the convict should travel for a limited term up and down the State, in company with the officers who might have him in charge. By the same means the inmates of the lunatic asylums might be temporarily enlarged, much to their own detriment; and every soldier or seaman in the service of the country would compel their commanders to bring them before the court six times a week.”
“ But the habeas corpus' act has never received such a construction. It is a writ of right, and may not be refused to one who shows a ’prima facie case entitling him to be discharged or bailed. But he has no right to demand it who admits that he is in legal custody for an offense not bailable; and he does make what is equivalent to such an admission when his own application, and the commitment referred to in it, show that he is lawfully detained. A complaint must be made, and the cause of detainer submitted to a judge, before the writ can go.
The very object and purpose of this is to prevent it from being trifled with by those who have manifestly no right to be set at liberty. It is like a writ of error in a criminal case, which the court or judge is bound to allow, if there be reason to suppose that an error has been committed, and equally bound to refuse, if it be clear that the judgment must be affirmed.”
“We are not aware that any application to this court for a writ of habeas corpus has ever been successful, where the judges, at the time of the allowance, were satisfied that the prisoner must be remanded. The petitioner’s counsel say that there is but one reported case in which it was refused^ and this fact is given in the argument as*443 a reason for supposing that in all other eases the writ was issued without examination. But no such inference can fairly be drawn from the scarcity of judicial decisions on a point like this. We do not expect to find in reports so recent as ours those long-established rules of law which the student learns from his elementary books, and which are constantly acted upon without being disputed.”
‘ ‘ The habeas corpus is a common law writ, and has been used in England from time immemorial just as it is now. The Statute of 31 Car., 2, C. 2, made no alteration in the practice of the courts in granting these writs (3 Barn. & Aid., 420-2; Chitty’s Reps., 207). It is merely provided, that the judges in vacation should have the power which the courts had previously exercised in term time (1 Chitty’s Gen. Prac., 586), and inflicted penalties on those who should defeat its operation. The common law upon this subject was brought to America by the colonists; and most if not all the States have since enacted laws resembling the English statute of Charles II, in every principal feature. The Constitution of the United States declares that ‘ the privilege of a writ of habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it.’ Congress has conferred upon the federal judges, then, power to issue such writs according to the principles and rules regulating it in other courts. Seeing that the same general principles of common law on this subject prevail in England and America, and seeing also the similarity of their statutory regulations in both countries, the decisions of the English judges, as well as of the American courts both State and federal, are entitled to our fullest respect as settling and defining our powers and duties.”
“ Blackstone (3 Com., 132) says that the writ of habeas corpus should be allowed only when the court or judge is satisfied that the party hath probable cause to be delivered. He gives cogent reasons why it should not be allowed in any other case, and cites with unqualified approbation the*444 precedent set by Sir Edward Coke and Chief Justice Yaughan in cases where they had refused it. Chitty lays down the same rule (1 Cr. Law, 101; 1 Gen. Prac., 686-7). It seems to have been acted upon by all the judges. The writ was refused in Rex v. Scheiner (1 Burr., 765), and in the case of The Three Spanish Sailors (2 Black’s R., 1324). In Hobhouse’s case (3 Barn. & Ald., 420) it was fully settled by a unanimous court as the true construction of the statute, that the writ is never to be allowed, if upon view of the commitment, it be manifest that the prisoner must be remanded. In New York when the statute in force there was precisely like ours (so far, I mean, as this question is concerned), it was decided by the supreme court (5 Johns, 282) that the allowance of the writ was a matter within the discretion of the court, depending on the grounds laid in the application. It was refused in Husted’s case (1, 2 Com., 136), and in ex parte Ferguson (9 Johns. R., 139). In addition to this we have the opinion of Chief Justice Marshall in Watkin’s case (3 Peters, 202), that the writ ought not to be awarded if the court is satisfied that the prisoner must be remanded. It was accordingly refused by the Supreme Court of the United States in that case, as it had been before in Kear-ney’s case.”
‘ ‘ On the whole, we are thoroughly satisfied that our duty requires us to view and examine the cause of de-tainer now, and to make an end of the business at once, if it appears that we have no power to discharge him on the return of the writ.”
“The prisoner, as already said, is confined on a sentence of the District Court of the United States, for a contempt. A habeas corpus is not a writ of error. It can not bring a case before us in such a manner that we can exercise any kind of appellate jurisdiction in it. On a habeas corpus, the judgment even of a subordinate State court can not be disregarded, reversed, or set aside, however clearly we may perceive it to be erroneous, and however plain it may be that we ought to reverse it if it were*445 before us on appeal or writ of error. We can only look at the record to see whether a judgment exists, and have no power to say whether it is right or wrong. It is conclusively presumed to be right until it is regularly brought up for revision. We decided this three years ago at Sun-bury, in a case which we all thought one of much hardship. But the rule is so familiar, so universally acknowl- • edged, and so reasonable in itself, that it requires only to be stated. It applies with still greater force, or at least for much stronger reasons* to the decisions of the federal courts. Over them we have no control at all, under any circumstances, or by any process that could be devised. Those tribunals belong to a different judicial system from ours. They administer a different code of laws and are responsible to a different sovereignty. The District Court of the United States is as independent of us as we are of it — as independent as the Supreme Court of the United States is of either. What the law and the Constitution have forbidden us to do directly on writ of error, we, of course, can not do indirectly by habeas corpus. ’ ’
“But the petitioner’s counsel have put his case on the ground that the whole proceeding against him in the District Court was coram non judice, null and void. It is certainly true that a void judgment may be regarded as no judgment at all; and every judgment is void which clearly appears on its own face to have been pronounced by a court having no jurisdiction or authority in the subject matter. For- instance, if a federal court should convict and sentence a citizen for libel; or if a State court, having, no jurisdiction except in civil pleas, should try an indictment for a crime and convict the party — in these cases the judgments would be wholly void. If the petitioner can bring himself within this principle, then there is no judgment against him; he is wrongfully imprisoned, and we must order him to be brought out and discharged. ’ ’
‘ < What is he detained for ? The answer is easy and simple. The commitment shows that he was tried, found*446 guilty, and sentenced for contempt of court, and nothing else. He is now confined in execution of that sentence, and for no other cause. This was a distinct and substantial offense against the authority and government of the United States. Does anybody doubt the jurisdiction of the District Court to punish contempt ? — Certainly not. All courts have this power, and must necessarily have it; otherwise they could not protect themselves from insult or enforce obedience to their process. Without it, they would be utterly powerless. The authority to deal with an offender of this class belongs exclusively to the court in which the offense is committed; and no other court, not even the highest, can interfere with its exercise either by writ of error, mandamus, or habeas corpus. If the power be abused, there is no remedy but impeachment. The law was so held - by this court in McLaughlin’s case (5 W. & Ser., 276), and by the Supreme Court of the United States in Kearney’s case (7 Wheaton, 38). It was solemnly settled, as part of the common law, in Brass Crosbey’s case (3 Wilson, 183), by a court in which sat two of the foremost jurists that England ever produced. We have not the smallest doubt that it is the law; and we must administer it as we find it. The only attempt ever made to disregard it was by a New York judge (4 Johns. B., 345), who was not supported by his brethren. This attempt was followed by all the evil and confusion which Blackstone and Kent and Story declared to be the necessary consequences. Whoever will trace the singular controversy to its termination will see that the chancellor and a majority of the Supreme Court, though once outvoted in the Senate, were never answered. The Senate itself yielded to the force of the truths which the Supreme Court had laid down so clearly, and the judgment of the Court of Errors in Yates’s case (6 Johns., 503) was overruled by the same court the year afterward, in Yates v. Lansing, 9 Johns. R., 423), which grew out of the very same transaction, and depended on the same principles. Still further reflection at a later period induced the Senate to*447 join the popular branch of the Legislature in passing a statute which effectually prevents one judge from interfering by a habeas corpus with the judgment of another on a question of contempt. ’ ’
‘ ‘ These principles being settled, it follows irresistibly, that the District Court of the United States had power and jurisdiction to decide what acts constitute a contempt against it; to determine whether the petitioner had been guilty of contempt, and to inflict upon him the punishment which, in its opinion, he ought to suffer. If we fully believed the petitioner to be innocent — if we were sure that the court which convicted him misunderstood the facts, or misapplied the law — still we could not re-examine the evidence, or rejudge the justice of the case, without grossly disregarding what we know to be the law of the land. The judge of the District Court decided the question on his own constitutional responsibility. Even if he could be shown to have acted tyrannically or corruptly, he could be called to answer for it only in the Senate of the United States.”
“ But the counsel of the petitioner go behind the proceedings in which he was convicted, and argue that the sentence for contempt is void, because the court had no jurisdiction of a certain other matter, which it was investigating, or attempting to investigate, when the contempt was committed. We find a judgment against him in one case; and he complains about another, in which there is no judgment. He is suffering for an offense against the United States; and he says he is innocent of any wrong to a particular individual. He is conclusively adjudged guilty of contempt; and he tells us that the court has no iurisdiction to restore Mr. Wheeler’s slaves.”
“It must be remembered that contempt of court is a specific criminal offense. It is punished sometimes by indictment, and sometimes in a summary proceeding, as it was in this case. In either mode of trial, the adjudication against the offender is a conviction, and the commitment in consequence is execution (7 Wheat., 38). This*448 is well settled, and I believe has never been doubted. Certainly the learned counsel for the petitioner have not denied it. The contempt may be connected with some particular cause, or it may consist in misbehavior which has a tendency to obstruct the administration of justice generally. When it is committed in a pending cause, the proceeding to punish it is a proceeding by itself. It is not entitled in the cause pending, but on the' criminal side (Wall., 134). The record of a conviction for contempt is as distinct from the matter under investigatioh when it was committed, as an indictment for perjury is from the cause in which the false oath was taken. Can a person, convicted of perjury, ask us to deliver him from the penitentiary, on showing that the oath, on which the perjury is assigned, was taken in a cause of which the court had no jurisdiction ? Would any judge in the commonwealth listen to such a reason for treating the sentence as void ? If, instead of swearing falsely, he refuses to be sworn at all, and he is convicted not of perjury but of contempt, the same rule applies, and with a force precisely equal. If it be really true that no contempt can be committed against a court while it is inquiring into a matter beyond its jurisdiction, and if the fact was so in this case, then the petitioner had a good defense; and he ought to have made it on his trial. To make it after conviction is too late. To make it here is to produce it before the wrong tribunal.”
“Every judgment must be conclusive until reversed. Such is the character, nature, and essence of all judgments. If it be not conclusive it is not a judgment. A court must either have power to settle a given question finally and forever, so as to preclude any further inquiry upon it, or else it has no power to make any decision at all. To say that a court may determine a matter, and that another court may regard the same matter afterward as open and undetermined, is an absurdity in terms.”
“It is most especially necessary that convictions for contempt in one court should be final, conclusive, and free*449 from re-examination by other courts on habeas corpus. If the law were not so, our judicial system would break to pieces in a month. Courts totally unconnected with each other would be coming in constant collision. The inferior courts would revise all the decisions of the judges placed over and above them. A party unwilling to be tried in this court, need only defy our authority, and if we commit him, to take, out his habeas corpus before an inferior judge of his own choosing, and if that judge is of opinion that we ought not to try him, there is an end of the case.”
‘ ‘ This doctrine is so plainly against the reason of the thing that it would be wonderful indeed if any authority for it could be found in the books. There is none except the overruled decision of Mr. Justice Spencer of New York, already referred to, and some efforts of the same kind to control the other courts, made by Sir Edward Coke, in the King’s Bench, which are now universally admitted tp have been illegal, as well as rude and intemperate. On the other hand, we have all the English judges, and all our own, declaring their want of power to interfere with or control one another in this way. I will content myself by simply referring to some of the books in which it is established that the conviction of contempt is a separate proceeding, and is conclusive of every fact which might have been urged on the trial for contempt, and among others want of jurisdiction to -try the cause in which the contempt was committed. (4 Johns. R., 325, et. seq.; the opinion of Chief Justice Kenton pages 370-375; 6 Johns., 503; 9 Johns., 423; 1 Hill, 170; 5 Iredell, 199; id., 153; 2 Sandf., 724; 1 Carter, 160; 1 Blackf., 166; 25 Miss., 836; 2 Wheeler’s Crim. Cases, p. 1; 14 Ad. & Ellis, 558.) These cases will speak for themselves, but I may remark as to the last one that the very same objection was made there and here. The party was convicted of contempt in not obeying the decree. He claimed his discharge on habeas corpus because the chancellor had no jurisdiction to make the decree, being interested in the cause himself. But the Court*450 of Queen’s Bench held that if that was a defense, it should have been made on the trial for contempt, and the conviction was conclusive. We can not but choose to hold the same rule here. Any other would be a violation of the law which is established and sustained by all authority and all reason.”
‘ ‘ But certainly the want of jurisdiction alleged in this case would not even have been a defense on the trial. The proposition that a court is powerless to punish for disorderly conduct or disobedience of its process in a case, which it ought ultimately to dismiss for want of jurisdiction, is not only unsupported by judicial authority, but we think it is new even as an argument at the bar. We ourselves have heard many cases through and through before we became convinced that it was our duty to remit the parties to another tribunal. But we never thought that our process could be’defied in such cases more than in others.”
‘ ‘ There are some proceedings in which the want of jurisdiction would be seen at the first blush; but there are others in which the court must inquire into all the facts before it can possibly know whether it has jurisdiction or not. Anyone who obstructs or baffles a judicial investigation for that purpose is unquestionably guilty of a crime for which he may and ought to be tried, convicted, and punished. Suppose a local action to be brought in the wrong county; this is a defense to the action, but a defense which must be made out like any other. While it is pending, neither a party, nor an officer, nor any other person can safely insult the court, or resist its order. The court may not have had power to decide upon the merits of the case; but it has undoubted power to try whether the wrong was done within its jurisdiction or not. Suppose Mr. Williamson to be called before the Circuit Court of the United States as a witness in a trial for murder, ■ alleged to be committed on the high seas. Can he refuse to be sworn, and at his trial for contempt justify himself on the ground that the murder was in fact committed*451 within the limits of a State, and therefore triable only in a State court? If he can, he can justify perjury for the saíne reason. But such a defense for either crime has never been heard of since the beginning of the world. Much less can it be shown, after conviction, as a ground for declaring the sentence void.”
Mr. Justice Lowrie in the samé case, and in a separate opinion, makes use of the following language:
‘ ‘ I have not been able to doubt that this court is, in many cases, bound to exercise its judgment, as to the propriety of granting the writ, before allowing it to issue. Notwithstanding the words of the act which imposes a penalty for refusing the writ, we are not forbidden to interpret the law; and the necessity of presenting a petition to the court or to a judge thereof; of stating therein whether the prisoner was detained on criminal, or on civil process, or neither; of producing the warrant of committal, or accounting for not doing so; and the fact that : traitors and murderers, and fugitives from the justice of other States, are excluded from the benefit of the act; and that the writ was not intended for the relief of convict criminals; Cro. Car., 168; 1 Salk., 348; and was not extended to them by our act; all these matters show plainly enough that the judge or court is not exercising a mere ministerial function in granting the writ. On any other supposition, there is no reason at all for applying to the court, for the prothonotary could grant it as well. ’ ’
“ And no one can examine the provisions of Magna Charta; the petition of right, 3 Charles, 1; the statute repealing the Starchamber Court; 16 Ch. 1, C. 10; the habeas corpus act of 31 Ch., 1; and ours of 1785, and the numerous kindred statutes to which that investigation will lead him, without perceiving that a free and open court, and a full and open trial before the superior judges by due course of law, have always been regarded as the best guaranty of the liberty of the citizen. He will see, moreover, very plainly, that the habeas corpus is only a*452 means by which this end is to be secured, so that no ignorance or tyranny of king, or king’s counsel, or minister, or of mere local and inferior courts, dependent on and governed by local customs, or of justices of the peace, shall imprison a man without a chance of bail, or a hope of obtaining a speedy trial by the law of the land. See 7 W. & Ser., 108.”
The above cases can not here be disposed of oh the ground that ‘ ‘ this was not a case where the applicant was imprisoned, but involved the question of the right to his freedom, of one held as a slave;” because the former (Passmore Williamson case) surely undertakes the discussion of habeas corpus fully and cites with approval the .latter case. (Ex parte Lawrence, 5 Binney, id.)
The case of Ex parte Lawrence, 5 Binn., 304, referred to in the foregoing opinion of Justice Black, is as follows:
‘ ‘ Phillips, on behalf of Ann Lawrence, petitioned the court-for a habeas corpus under the act of 1785 to one Joseph Yogdes, to bring up the body of Adam Lawrence then in his custody as a slave, whereas, according to the suggestion, he was free.”
“It was stated by the counsel that the case had been already heard upon a habe.as corpus by the common pleas of Philadelphia County, who remanded the prisoner; and that there was no new evidence to lay before this court. ’ ’
“Per Curiam. We do not think that the act of assembly obliges this court to grant a habeas corpus, where the case has been already heard upon the same evidence by another court; and we do not think it expedient in this case, because it has been already heard upon the same evidence, and the party is not without, remedy, as he may resort to a homine replegiando. The court are not, however, to be understood as saying that they have not authority to issue a habeas corpus in such a case, if they should think it expedient. Habeas corpus refused.”
An interesting case, and one that directly passes upon many of the questions here involved, is the recent one, 1895, of Brown v. Walker, 161 U. S., 591; and I quote
‘ ‘ This case involves an alleged incompatibility between that clause of the fifth amendment to the constitution which declares that no person ‘ shall be compelled in any criminal case to be a witness against himself, ’ and the act of Congress of February 11, 1893, C. 83, 27 Stat., 443, which enacts that £no person shall be excused from attending and testifying or from producing books, papers, tariffs, contracts, agreements and documents before the Interstate Commerce Commission, or in obedience to the subpoena of the commission, * * * on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him,, may tend to criminate him or subject him to a penalty or forfeiture. But no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may testify, or produce evidence, documentary or otherwise, before said commission, or in obedience to its subpoena, or the subpoena of either of them, or in any such case or proceeding. ’ The act is supposed to have been passed in view of the opinion of this court in Counselman v. Hitchcock, 142 U. S., 547, to the effect that Section 860, of the Bev. Stats., providing that no evidence given by a witness shall be used against him, his property or estate in any manner, in any court of the United States, in any criminal proceeding, did not afford that complete protection to the witness which the amendment was intended to guarantee.” After giving the gist of the Coun-selman decision and referring to statutes giving "immunity from prosecution, the court'says: “In the latter case (Queen v. Boyes, 1 B. & S., 311, 321) it was suggested, in answer to the production by the solicitor general of a pardon of the witness under the great seal, that by statute no such pardon under the great seal was pleadable to an impeachment by the commons in parliament; and it was insisted that this was a sufficient reason for holding that the privilege of the witness still existed, upon the ground*454 that, although protected by the pardon against every other form of prosecution, the witness might possibly be subjected to parliamentary impeachment. It was also contended in that case, as it is in the one under consideration, that a bare possibility of legal peril was sufficient to entitle a witness to protection. Nay, further, that the witness was the sole judge as to whether his evidence would bring him into danger of the law; and that the statement of his belief to that effect if not manifestly made mala fide would be received as conclusive.” It was held, however, by Lord Chief Justice Cockburn, that, “to entitle a party called as a witness to the privilege of silence, the court must see, from the evidence which the witness is called to give, that there is reasonable ground to-apprehend danger to the witness from his being compelled to answer; ” although, “if the fact of the witness being in danger be once made to appear, great latitude should be allowed to him in judging for himself of the effect of any particular question.”
“Further than this,” said the Chief Justice, “we are of the opinion that the danger to be apprehended must be real and appreciable, with reference to the ordinary operation of law in the ordinary course of things, not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct. We think that a merely remote and flaked possibility, out of the ordinary course of the law, and such as no reasonable man would be affected by, should not be suffered to obstruct the administration of justice. The object of the. law is to afford to a party, called upon to give evidence in a proceeding inter alios, protection against being brought by means of his own evidence within the penalties of the law. But it would be to convert a salutary protection into a means of abuse if it were to be held that a mere imaginary possibility of danger, however remote and improbable, was sufficient to justify the withholding of evidence essential to the ends of justice.”
*455 ‘ ‘ All of the cases above cited proceed upon the idea that the prohibition against his being compelled to testify against himself presupposes a legal detriment to the witness arising from the exposure. As the object of the first eight amendments to the Constitution was to incorporate into the fundamental láw of the land certain principles of natural justice which had become permanently fixed in the jurisprudence of the mother country, the construction given to those principles by the English courts is cogent evidence of what they were designed to secure and of the limitations that should be put upon them. This is but another application of the familiar rule that when one State adopts the laws of another, it is also presumed to adopt the known and settled construction of those laws by the courts of the State from which they were taken.” (Citing authorities.)
‘ ‘ The danger of extending the principle announced in Counselman v. Hitchcock, is that the privilege may be put forward for a sentimental reason, or for purely fanciful protection of the witness against an imaginary danger, and for the real purpose of securing immunity to some third person who is interested in concealing the facts to which he would testify. Every good citizen is bound to aid in the enforcement of the law, and has no right to permit himself, under the pretext of shielding his own good name, to be made the tool of others who are desirous of seeking shelter behind his privilege. ’ ’ Then follows in the opinion of the court a discussion of the immunity afforded by the act first described, and this language is used: “It is entirely true that the statute does not purport, nor is it possible for any statute, to shield the witness from the personal disgrace or opprobrium attaching to the exposure of his crime; but, as we have already observed, the authorities are numerous and very nearly uniform to the effect that, if the proposed testimony is material to the issue on trial, the fact that the testimony may tend to degrade the witness in public estimation does not exempt liim from, the duty of disclosure. A person who commits*456 a criminal act is bound to contemplate tbe consequences of exposure to his good name and reputation, and ought not to call upon the courts to protect that which he has himself esteemed to be of such little value. The safety and welfare of an entire community should not be put into the scale against the reputation of a self-confessed criminal, who ought not, either in justice or in good morals, to refuse to disclose that which may be of'great public utility, in order that his neighbors may think well of him. The design of the constitutional privilege is not to aid the witness in vindicating his character, but to protect him against being compelled to furnish evidence to convict him of a criminal charge.”
In all fairness it should be conceded that this judgment of the highest court in our land was by a divided court, four of the justices dissenting, and in two separate opinions virtually adhere to the opinion rendered in the Coun-selman case. Mr. Justice Field, in his separate‘dissenting opinion concedes all that is necessary for my contention in this case, as I shall show hereafter, by the following language: “It is conceded as an established doctrine, universally assented to, that a witness claiming his constitutional privilege can not be questioned concerning the way in which he fears he may incriminate himself, or, at least, only so far as may be needed to satisfy the court that he is making his claim in good faith, and not as a pretext. Fisher v. Ronalds, 12 C. B., 762; Adams v. Lloyd, 3 H. & N., 351; Regina v. Boyes, 7 Jur. N. S., Part 1, 1158; 22 Am. Law Rev., 21, note, p. 28; 2 Crim. Law Mag., 645, note, 654.
“To establish good faith on the part of the witness in claiming his constitutional privilege of exemption from self-incrimination, where he is examined as a witness in a criminal case, he may be questioned as to his apprehension of criminating himself by his answer, but no further.”
A leading case, and one that has come down to us as sound doctrine and runs through a great may if not all
In the case of Kirschner v. The State, 9 Wis., 136, we find the following language: “Although the witness is the judge of the effect of his answer, and is not bound to disclose any facts or circumstances to' show how the answer would affect him, as that would defeat the rule and destroy the protection afforded by the law, yet the court is to determine under all the circumstances of the case whether such is the tendency of the question put to him, and whether he shall be required to answer; as otherwise it would be in the power of every witness to deprive parties of the benefit of his testimony by merely colorable pretense that his answer to questions would have a tendency to implicate him in some crime or misdemeanor, or would expose him to a penalty of forfeiture, when it is clear, as we think it was in this cáse, that the questions have no such tendency. ’ ’
In Calhoun v. Thompson, 56 Ala., 166, the court says: ‘1 In the first instance, it is the province of the court to determine whether any direct answer to the question proposed will furnish criminating evidence against the witness. If it is not apparent such would be the tendency of the answer, the witness is not privileged from testify
In the case of Richman v. The State, 2 Iowa, 532, the court says: “ When it is evident to the mind of the court that the answer can not accuse the witness, the court should require him to respond to the interrogatory. If this were not the case, it would be in the power of the witness, when called upon to give testimony in a criminal case, to refuse to do so. If he is to be the sole judge whether the answer would implicate him by thus answering, it would be impossible to elicit any testimony. Perjury could' not only be committed with impunity by stating that the answer would criminate him, but the guilty would be screened from merited punishment. We can not sanction a rule fraught with such dangerous consequences. The direct tendency of such a rule would be to suppress the truth and prevent the administration of justice. Therefore, we think the better and safer rule to be that of compelling the witness to answer, when it is apparent to the court that such answer would not interfere with his legal privilege. ’ ’
The Circuit Court, S. D., New York, in the case of the United States v. Mc Carthy, announce the rule to be as follows: “ It is not sufficient to excuse the witness from answering that he may in his own mind think his answer to the question might by possibility lead to some criminal charge against him, or tend to convict him of it if made, the court must be able to perceive that there is a reasonable ground to apprehend danger to the witness from his being compelled to answer. Regina v. Boyes, 1 Best & S., 311; Whart. Ev., Sec. 588.”
The supreme court of Iowa upon this subject in the case of the State v. Duffy have this to say: ‘‘The true rule upon this subject will be found discussed by Chief Justice Marshall (1 Burr’s Trial, 244) and in The People
During the discussion of the case of Regina v. Boyes, a case that has been referred to so many times, Justice Blackburn said: “Taylor refers to an American case, The People v. Mather, 4 Wend., 229, where Marcy, J., delivered the judgment of the court, and after a learned and elaborate argument, decided that the witness there was not obliged to answer. His conclusion is, p. 257, ‘I think that the judge could not safely say that the privilege was claimed by the witness in this case as a mere subterfuge to suppress the truth, and thereby aid the escape of the guilty.’ That is the reason of the decision, and it is a very sensible rule to go by.”
In the case of State v. Pancoast, 5 N. D., 514, the court makes use of the following language: “We must not be understood to mean that, in every case where a witness under oath claims his privilege on the ground that his answer will tend to criminate him, the privilege will be granted. Ordinarily it will, and the witness can not be required to specify in what manner his answer may be incriminating. This would be to destroy the privilege. But when a court can discover no reasonable theory upon which the answer could be incriminating, further investigation may be made or the privilege denied. A witness will not be permitted to make any fraudulent use of his privilege. ”
In the case of State v. Thaden, 43 Minn., 253, Justice Mitchell makes use of the following language: “The first
The above is found in the syllabus of a case in 43 Minn., 253. The case is all in point, but particularly the statement that in claiming exemption the witness did not claim that an answer would criminate, but that it might crim-inate. The same distinction is here.
Chief Justice Brickell, in case found in 56 Ala., 169, says: “The humane maxim of the law is, that no one is bound to accuse himself. A witness, though a party to a suit, can not be compelled to answer any question, the answering of which may expose or tend to expose him to a criminal charge, or to any kind of punishment. 2 Phill. Ev., 929; 1 Green. Ev., Sec. 451. In the first instance it is the province of the court to determine whether any direct answer to the question proposed will furnish crimi-nating evidence against the witness. If it is not apparent such would be the tendency of the answer, the witness is not privileged from testifying. While it is of the highest importance to protect the witness from self-crimination, it is also of importance that the privileges that the law extends to him should not be perverted to the suppression of evidence that can be safely given. 2 Phill. Ev., 933. We can not discover that the evidence sought to be elicited could have the least tendency to criminate the witness. The argument of counsel assumes that in this proceeding by writ of habeas corpus, we can inquire into and correct nearly all errors which may have been committed by the district court in the control of the case originally. This has been so often denied by this court and the proposition
Book 32, Lawyer’s Rep., Ann., p. 135, contains a case that is interesting, and discusses the Counselman case that has been referred to many times, reported in 142 U. S., 547, and several other cases. After referring to the language of Chief Justice Marshall in the Burr case, this decision says: “The authorities agree that the right of privilege against compelling disclosure of incriminating evidence is personal to the witness, he alone being entitled to invoke its protection, and that it may be waived by him. Whether the court or the witness has the right to determine the question of privilege, or to what extent the claim of privilege is left to the determination of the witness, has not been so uniformly stated in the decisions. It has never been recognized that he alone has the right in all cases to decide whether his answer will tend to criminate him. Such a rule would be mischievous and enable unscrupulous witnesses to defeat the ends of. justice in many cases. And this opinion goes on and learnedly points out distinctions that can be drawn from opinions that seem to decide otherwise. ’ ’
The Georgia case referred to in the opinion of this court in this case was a civil action for personal injuries against a railway company, and part of the syllabus of the case is as follows: “A party, though introduced as a witness in his own behalf, may, upon cross-examination as to matters not voluntarily testified about on his direct examination, decline to give testimony which would tend to criminate him, or to bring infamy, disgrace, or public contempt upon himself or his family, notwithstanding the fact that at a previous trial of the case he had waived his privilege of remaining silent as to these matters. A waiver of this kind is not binding upon a witness at a trial subsequent to that at which the waiver was made. ’ ’
The case of Temple v. Commonwealth, 75 Va., 892, referred to, was a case where the witness thought he was under arrest, and was taken before the grand jury and gave evidence, was committed to jail for want of a bond to appear as a witness, and while in jail was advised of his constitutional right. The court makes the ruling referred to entirely consistent, and the following is some of the language used: “ In the case before us it appears that the plaintiff in error, while held in jail as a witness, consulted with counsel, who advised him that he would criminate himself if he testified in the case, against Berry and gave the same testimony which he had given before the grand jury. The court might well have inquired into the fact whether he had actually received such advice of counsel, or if it believed that such was disreputable, and that the advice was given simply to protect the offender, or to shield a contumacious or bribed witness — all these matters might have been properly inquired into by the court.” And Justice Staples, in his separate opinion concurring, says: “No suggestion is .made here that the witness was. contumacious, or that his answer would not tend to crimi-nate him.”
In the case of Samuel v. The People, 164 Ill., 319,
As to the applicant’s right of appeal I submit the following: Section 3126 of the Revised Statutes of Wyoming is as follows: “An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right, made in a special proceeding, or upon a summary application in an action, after judgment, is a final order which may be vacated, modified, or reversed, as provided in this chapter. (S. L. 1886, Ch. 60, Sec. 718, R. S. O., Sec. 6707.)”
And Section 3128 is as follows: “ A judgment rendered or final order made by the district court, may be reversed, vacated, or modified by the supreme court, for errors appearing on the record. (S. L. 1886, Ch. 60, Sec. 780, R. S. O., 6709.)”
If a construction of these sections by the supreme court of Ohio was had prior to their adoption, such construction become a part of. the law of Wyoming as all will admit, and a decision of a supreme court upon a statute identical with ours is to say the least persuasive.
In the case of ex parte James Collier on habeas corpus 6 O. S., 56 (1867), the court makes use of the following language:
‘1 This proceeding is brought here by the marshal, on certiorari. It is supposed that he relied, in the adoption of this form, on Section 10 of the amendatory act securing the benefit of the writ of habeas corpus, passed Feb*467 ruary 8, 1847 (Swan’s Stat., 454), which provides: ‘That the proceedings on any writ of habeas corpus shall be recorded by the clerks, and may be reviewed on writs of error and certiorarim as in other cases now provided by ■law.’ ”
‘ ‘ At the time of this enactment, writs of error and of certiorari were, by law, the remedies in use for reviewing and correcting proceedings at law, in civil or criminal cases; but Section 530 of the code, which took effect July 1, 1853, declares that writs of error and certiorari, to reverse, vacate, or modify judgments or orders in civil cases, are abolished; and the petition in error is, by Section 515 of the code, substituted in their place.”
• “ We regard this in the nature of a civil proceeding. But if it be in the nature of a criminal proceeding against a prisoner charged with crime, it is subject to the fatal objection that no such remedy can be maintained in favor of the prosecution against the defendant. The right to prosecute a writ of error or certiorari against one who is indicted and tried for a crime or offense, is not given to the state, nor to those who prosecute offenders under its laws. ’ ’
“ Section 604 of the code enacts, ‘That until the Legislature shall otherwise provide, this code shall not affect proceedings on habeas corpus,’ etc. It may be claimed that this clause, by its peculiar phraseology, saves the ha-beas corpus act, and all of the remedies given by it, from the-operations of the code. The word ‘proceedings’ includes, we think, nothing more than the doings of the judge who allows the writ, and is limited to the hearing before him. The filing of a petition in error is a proceeding before another tribunal. It is new in its character, and affects a review of the decision of the judge, without forming any part of the case before him.”
“The allowance of the writ; the bringing forward of the petitioner before the judge; the inquiry into the cause of his caption and detention; the introduction of evidence, and the liberation, or other disposal of the relator are all*468 to be governed by the act relating thereto; and, as to other questions, to be determined by some other tribunal though arising out of the case made on the writ, the code prescribes the form by which they are to be governed. ”
“We adopt this construction, the more willingly, as it secures uniformity of practice in cases of error in civil proceedings, which seems to be a prominent object of the code (see Section 605); and, if carried out, will be found useful to the profession. The writ is dismissed for want of jurisdiction.”
If it be .urged that Section 3128, id., does not apply • because reference is made to the district court only, an inspection of the case of King v. King, 88 Ohio State, 370 (1882), will disclose a construction of that section which makes it applicable to proceedings before a judge at chambers. In that case the court says: “ A judge of the court of common pleas is ex officio a judge of the district court, and as such is empowered to grant temporary alimony pending an appeal with respect to permanent alimony. 72 Ohio L., 145, Sec. 9; 75 Ohio L., 749, Sec. 13; Rev. Stats., Sec. 5701. The order thus made in such special proceeding (75 Ohio L., 726; 2 Rev. Stats., 1361), is in its nature final, and may be reviewed on error. 75 Ohio L., 804, Sec. 1; Rev. Stats., Sec. 6707; O’Donnell v. O’Donnell, 1 Disney, 299; Brigel v. Starbuck; 34 Ohio St., 280; Carpenter v. Canal Co., 35 Ohio St., 307, 315; Foss v. Foss, 100 Ill., 576; 2 Bishop’s M. & D., Sec. 406. While the better practice is for the judge making such order to sign it, this is not essential to its validity, where, as here, it was entered on the journal by direction of the judge as required by statute (Rev. Stats., Secs. 4963, 5331; Osburn v. The State, 7 Ohio, pt. 1, p. 212); and the provisions as to signing the journal which the former practice act contained (Sheehan v. Davis, 17 Ohio St., 571), was not carried into the code.”
In line with the foregoing is the decision of this court in Smith Drug Co. v. Casper Drug Co., 5 Wyo., 510,
The fact that this court in this proceeding can not review the decision of Judge Scott of the District Court in the proceeding before him on habeas corpus can not be denied and is not claimed. I feel warranted in view of the importance of this case, to refer to some of the authorities on that subject briefly. The supreme court of Nevada, in case ex parte Winston, say: “A habeas corpus is not a writ of error; it can not be used to authorize appellate jurisdiction. On a habeas corpus the judgment of an inferior court can not be disregarded. We can look at the record to see whether a judgment exists, and have no power to say whether it is right or wrong. It is conclusively presumed to be right until reversed; and when the imprisonment is under process, valid on its face, it will be deemed prima facie legal, and if the petitioner fails to show a want of jurisdiction in the magistrate or court whence it emanated, his body must be remanded to custody.” (Citing several authorities.)
In case ex parte Shaw, 7 O. St., 81, we find the following: “Questions of doubtful jurisdiction are frequently involved in a record which are proper subjects of consideration upon a writ of error, and which sh ould not, therefore, be entertained or decided up on habeas corpus. * * * It is said to be the practice in some parts of this State to
I can see no force in the argument that a law shall be considered of less effect by reason of the arrangement of the statute, whether it be in the code of civil procedure or included in the provisions as to habeas corpus, it is the law just the same. The fact that probate judges were given jurisdiction in habeas corpus and mandamus, only shows that an unconstitutional attempt was made to confer upon citizens of the Territory certain judicial powers that were being exercised by those in whose selection they had no voice or vote.
While it was admitted in the argument of this case that the proceedings had before Justice Scott of the district court on habeas corpus were only made a part of the petition for the reason that the law required it to be done where a second application is made; and it was conceded that those proceedings could not be reviewed here on this proceeding, still we find all through the hearing and in the final judgment, reference to what was done by, or in the proceeding, before Justice Scott; as, for instance, the question of good faith was not referred to in the justice’s court. The affidavit made by Miskimmins to obtain a requisition first came into the case during the proceedings before Justice Scott; and, as it is referred to in the opinion of the court at considerable length, I desire to set it out in full, calling attention to the fact that it was made in the presence of the justice of the peace, who also knew all the circumstances of the making of the affidavit by the prosecuting attorney, and of his virtually having withdrawn the same, and who upon the examination before him as committing magistrate, when the applicant refused to make answer to the questions (which are set out in the opinion of the court, and it would be well to read) refused to allow the claimed privilege of applicant because there
The State oe Wyoming
County oe LaRAmié.
AFFIDAVIT.
John Miskimmins, of the County of Laramie, in the State of Wyoming, being first duly sworn according to law, upon his oath says as follows: that he is the principal and complaining-witness against Clifford W. Lang and James Raff, who have fled from the justice of the State; that the application for a requisition is made in good faith, for the sole purpose of punishing the accused, and that he does not desire or expect to use the prosecution for the purpose of collecting a debt, or for any private purpose, and that he will not directly or indirectly use the same for any of said purposes.
Affiant further says, that on or about the 11th day of July, A. JD. 1899, at the County of Laramie, in the State óf Wyoming, James Raff represented to John Miskimmins, this affiant, that he, James Raff, was worth the sum of fifteen thousand ($15,000) dollars, which amount he desired to invest in cattle, that he had come out here to Wyoming for that purpose; that thereupon Clifford W. Lang represented to John Miskimmins, this affiant, that he, the said Clifford W. Lang, was the owner of sixty head of cattle, that said cattle were ranging on the ranch of Bert Wilkins, in Converse County, Wyoming; and that he, the said Clifford W. Lang, desired to dispose of the same, that James Raff would purchase the said bunch of cattle, if the said bunch of cattle was larger in point oí
Affiant further says that Clifford W. Lang represented to this affiant, that he, the said Clifford "W. Lang, was desirous of getting out of the cattle business, and proposed to sell to John Miskimmins, this affiant, the whole bunch of cattle for the sum of nineteen dollars and fifty cents ($19.50) per head.
That this affiant, believing the said Clifford W. Lang to be the owner of said cattle, purchased the cattle from the said Clifford W. Lang, that he paid therefor the sum of eleven hundred and thirty dollars ($1,130.00), by a sight draft on the Flato Commission Company of South Omaha, Neb., payable to the order of C. W. Lang.
Affiant further says that thereupon the- said Clifford W. Lang cashed the said draft at the First National Bank of Cheyenne, that thereupon he said to this affiant that he would take the next train for Salt Lake City, but was found by this affiant on the outgoing train bound for the city of Denver, that on this affiant meeting the said Clifford W. Lang on the said Denver train, he, the said Clifford W. Lang, frankly admitted to this affiant that the cattle deal had been a bogus one, but that he, the said Clifford W. Lang, had turned $1,130.00 over to his confederate, the said James Baff, who had gone on ahead and was awaiting him at Evans, Colo., and if he, this affiant, would accompany him to Evans, Colo., the $1,130.00 would be returned to this affiant.
Affiant further says that thereupon he accompanied the said Clifford W. Lang to Evans, Colo., and that upon their arrival at Evans, Colo., they proceeded to a room over a saloon of one O’Grady, where he was confronted by James Baff, Clifford W. Lang, and Elmer Luther, that yrhen fhi§ affiant demanded restitution of the '$1,130.00,
Affiant further says that Elmer Luther, on the 12th day of July, at the county of Weld, in the State of Colorado, shook his fist in this affiant’s face, and said as follows : “You come down here to skin us, God damn you, but you got the worst of it; I have got the money, you better go back to Cheyenne, and keep your damned mouth shut, or some of us will get you. ’ ’
Affiant further says that the said Clifford W. Lang and the said James Kaff have fled from the justice of this State, and are now in the State of Colorado, that they are now detained in the Weld County jail,' at Greeley, at the instance of this affiant, that the aforesaid fugitives were in the State of Wyoming, on the 11th day of July, A. D. 1899, at the time of the commission of this felony.
And further affiant sayeth not.
John Miskimmins.
Sworn and subscribed before me this 14th day of July, A. D. 1899.
John A. Maetin,
Justice of the Peace.
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Counsel by an ingenious appeal to the humanitarian application of habeas corpus, have partially hidden the possible effect of a decision for which they contend and have secured. I desire to call attention to some of the statements in the able opinion just rendered: “ It is urged in this case that the witness had already made a statement inquired about by the question propounded, and that to rehearse them as formerly stated, which he must do to inake a true answer, could not by any possibility incrimi
