Nason v. Staples

48 Me. 123 | Me. | 1861

The opinion of the Court was drawn up by

Davis, J.

This case is not analogous to that of State v. Hartwell, 35 Maine, 129. There the mittimus merely-set out that the magistrate had reason to suspect the accused to be guilty. Here it is alleged that the accused, upon his hearing, had been “ convicted” of the offence. Though the magistrate had no authority to sentence, he had authority to try the case. He required the accused to plead to the charge; and, upon that plea, after the hearing, he convicted him. “ Conviction” is an adjudication that the accused is guilty. It imports all that the statute requires before holding one to bail, and more. It involves not only the corpus delicti, and the probable guilt of the accused, but his actual guilt. I think the mittimus sufficient.

But if not, I am satisfied that the plaintiff’s remedy is not by the writ de homine replegiando, but that he should have applied for a writ of habeas corpus.

I am aware that a writ of personal replevin was sustained by this Court in the case of Gurney v. Tufts, 37 Maine, 130; and the opinion in that case, in regard to what is requisite in a warrant, in order to justify the officer in executing it, is clearly correct. No other question was raised in the argument. The attention of the Court was not called to the fact that the statute was entirely changed by the revision of 1841; and it is not strange that it should have been overlooked.

The writ of personal replevin was provided for by statute in 1787. 1 Laws of Mass., 361. That was reenacted in this State, at the time of our separation. Laws of 1821, c. 66. By that statute, persons held upon criminal process, (with various exceptions, including all offences not then bailable,) when such persons were not under sentence, were entitled to the writ. So all persons held upon civil process, unless held in execution upon judgment., or by distress for taxes, were entitled to the writ; and all persons held in duress without any process. If the person applying for the writ was held to answer upon any criminal process, before he could be delivered, he was required to recognize, with sufficient sureties, for his appearance, “ to answer, abide, and perform the order and sentence of the Court.” If held upon civil process, (■which was restricted to mesne process,) or, if held without process, he was required to give bond to the defendant.

These provisions, except for persons held without any process, were found to be needless. Persons restrained of their liberty without cause had a speedy remedy, much less onerous in that it required no recognizance or bond, by a writ of habeas corpus. So that there is not a single case reported, in this State or in Massachusetts, where a person held upon legal process, either civil or criminal, ever applied for the writ. Eor these reasons, doubtless, when the statutes were revised in 1841, all the provisions - for this writ, except in behalf of persons held without any process, were carefully omitted. That it was then intended to abolish or discontinue the writ in all cases where the person was held upon any process, either civil or criminal, is evident for the following reasons.

The exception embraces all such processes. No person is entitled to this remedy who is held upon “ a lawful writ, warrant, or other process, civil or criminal.” The terjn “lawful” does not mean legally sufficient, but is the same as legal process, or process of law. A writ, or warrant, issuing from any Court, under color of law, is a legal process, however defective.

The original statute excepted persons held upon final process, either civil or criminal; and also persons held to answer for offences not bailable. • There is no such exception in the statute of 1841. If any one held upon legal process is entitled to the writ, every one is, whether the process is mesne or final; whether he is held to answer to a criminal charge, or is under sentence ; whether the offence is bailable, or not. Such could not have been the intention of the Legislature.

This view is confirmed by the fact that, in the revision of 1841, all provisions for a recognizance were .stricken out. It cannot, therefore, apply to a criminal case. Nothing is required but a bond, as in replevin for chattels.

And the cases of custody enumerated in section seven, R. S., 1857, c. 101, show that it was not intended for persons held upon civil process. The words “ or otherwise” imply cases of a similar nature to that of “ child, apprentice, or one under bail.” The statute would apply to a seaman, or to a soldier. Hutchins v. Van Bokkelen, 34 Maine, 126. But, to ^ apply it to one in custody upon legal process, under the provisions of the present statute, would endanger important public and private rights and interests, without any possibility of redress. Exceptions sustained.

Tenney, C. J., Appleton, Cutting and Goodenow, JJ., concurred.