State ex rel. Jackson v. KennieState ex rel. Jackson v. Kennie
- Reporters:
- , ,
- Before:
- Brantly
after stating the case, delivered the opinion of the Court.
The attorney general makes the contention that there is no provision in the statutes permitting an appeal to this Court from ah order of the district court, or a judge thereof, in habeas corpus proceedings, and that this Court has no jurisdiction to entertain this appeal. His argument proceeds upon the theory that the certiorari proceeding was merely ancillary to the application for the writ of habeas corpus, and follows it; and that, if there is no appeal from the order denying this latter, there is therefore no jurisdiction in this Court to consider any question arising out of the action of the district judge in dismissing the former. The correctness of this contention depends upon the two propоsitions, viz: -Whether an appeal lies from the order denying the writ of habeas corpus; and, if it does not, whether the application for the writ of certiorari is so far independent of the former proceeding that the appeal may‘be entertained from the order in so far as it denied this writ.
There is no provision in the habeas corpus act (Penal Code, Sections 2740-2772), upon the subject of appeal, nor is there any such provision in the title in the Penal Code under which this proceeding is classified. This title, Title XII., Chapter I., Part II., classifies the writ of habeas corpus as a special proceeding of a criminal nature. • Following out the idea suggested by this classification, in the absence of a right of appeal provided for in the title treating of this proceeding, we naturally and properly turn to the general provisions of the Penal Code, allowing appeals in criminal cases, to find if *50the right is provided for there. These we find in Sections 2270 — 2273, inclusive. Section 2270 provides that “an appeal to the Supreme Court may be taken by the defendant, as a mattеr of right, from any judgment against him.” Section 2272 allows an appeal to the defendant (1) from a final judgment of conviction; (2) from an order denying a motion for a new trial; and (3) from an order after judgment affecting the substantial rights of the party. Section 2273 enumerates the instances in which the state may appeal. Bearing in mind the rule that an аppeal is a creature of the statute, and is allowable only where the order or judgment sought to be reviewed by this means is fairly covered by its terms (In re Tuohy‘s Estate, 23 Mont. 305, 58 Pac. 722), we must conclude that the foregoing provisions have no reference to habeas corpus proceedings, unless the order made therein can be designated as a “final judgment,” and the cоmplainant can be properly denominated a ‘ ‘defendant. ’ ’ That this latter term is not a proper designation for a petitioner in a habeas corpus proceeding is clear from Section 2890 of the Penal Code, which provides that “the party prosecuting a special proceeding of a criminal nature is designated in this Code as the complainant, and the adversé party as the defendant. ’ A party cannot for the purpose of instituting a proceeding be the complainant, and for the purpose of prosecuting an appeal in the same proceeding shift his position to that of the defendant. Nor is the determination of a cоurt or judge in this proceeding adverse to the complainant properly designated by the term “judgment, ’ ’ within the meaning of the foregoing provisions. Obviously, the judgment mentioned in Section 2270 is the final judgment or other order referred to in Section 2272, and embraces only those judgments and orders which become res adjudicata and final as to all matters involved in the controversy. And the rule has generally been adopted that an order denying a writ of habeas corpus is not such a judgment as to render the rights of the petitioner res adjudicata, and finally to conclude him. This was the rule at common law. (Rex v. Suddis, 1 East, 306; Church on Habeas Corpus, Sec. 386.) It is *51so held in California, Missouri, Illinois, Pennsylvania, Massachusetts, and North Dakota. (In re Perkins, 2 Cal. 424; In re Ring, 28 Cal. 247; Howe v. State, 9 Mo. 682; Hammond v. People, 32 Ill. 446; Ex parte Thompson, 93 Ill. 89; Com. ex rel. Lehman v. Jones, 3 Serg. & R. 158; Com. ex rel. Parker v. Blatt, 165 Pa. St. 213, 30 Atl. 674; Bradley v. Beetle, 153 Mass. 154, 26 N. E. 429; Carruth v. Taylor, (N. D.) 77 N. W. 617.) This was formerly the rule in New York. (People ex rel. Lawrence v. Brady, 56 N. Y. 182.) An appeal is now allowed in that state by statute. ‘ ‘In the fedеral courts of the United States the doctrine of res adjudicata does not apply to an order remanding the prisoner, and the prevailing doctrine in the state courts, in the absence of statutory provisions, is that a judgment remanding a prisoner on habeas corpus is not appealable or subject to review, and that the doctrine of res adjudicata has no application to such a case. The prisoner is entitled to the opinion of all the courts as to his freedom, and in his applications for the writ of habeas corpus may exhaust the entire judicial power of the state. ’ ’ (Church on Habeas Corpus, Sec. 386.)
From these considerations, it is clear that from an order denying the writ and remanding the prisoner no appeal liеs, under any of the foregoing provisions of the Penal Code. It is equally clear that the appeal does not lie under any provision of the Code of Civil Procedure. Section 1722 of that Code, as amended by the Act of 1899, p. 146, provides only for appeals in civil cases, and has no application to any matter contained in the Penal Code. This is made clear by reference to Section 1720 of the Code of Civil Procedure, which provides that “a judgment or order in a civil action * * * may be reviewed as prescribed in this Title, and not otherwise.” It is further provided in Section 3480 that “the Penal Code defines and provides for the prosecution оf a criminal action. ’ ’
W e must therefore hold that the appeal, so far as it seeks a review of the action of the district judge upon the application for the writ of habeas corpus, must be dismissed.
*52To support the appeal, the appellant cites Territory ex rel. McCann v. Sheriff, 6 Mont. 297, 12 Pac. 662; State ex rel. Newell v. Newell, 13 Mont. 302, 34 Pac. 28; State ex rel. Giroux v. Giroux, 15 Mont. 137, 38 Pac. 465; Id., 19 Mont. 149, 47 Pac. 798, — as conclusive. It is sufficient to say of Territory ex rel. McCann v. Sheriff, and State ex rel. Newell v. Newell that they arose under the provisions of the old Code, which were essentially different in many respects from those pontained in our present Codе, and that in neither of them was the question of the right of appeal presented. This latter remark also disposes of State ex rel. Giroux v. Giroux. Though it arose under our present Code, the right of review by this Court was not called in question. Had the attention of this Court been called to the provisions of the Code as they now stand, doubtless the authority of People v. Schuster, 40 Cal. 627, would have been followed.
We are of the opinion, however, that the appeal from the order, in so far as it dismissed the certiorari proceedings, is properly before us. The relief sought thereby was the same as if the. proceeding had been instituted as an independent remedy; for its purpose was to have the district judge review the proceedings had before the justice of the peace, and to annul the order therein made, and not merely to bring up the record of those proceedings in aid of the habeas corpus.- All the substantive relief that the district judge could, under any circumstances, grant under the certiorari, was sought by the relator, and the power of the judge to act thereon was invoked to the samе extent as if the habeas corpus proceeding had not been instituted. There was no appeal from the order complained of, and the only way open to the relator to have it set aside was -by means of the review allowed under this writ. (Code of Civil Procedure, Section 1941.) It is not uncommon for this writ t.d be used in this way, where it is sought to set aside a conviction in summary proceedings before a justice of the peace where there is no appeal. For this course of procedure we find sanction in the following authorities: Grieb v. Kuttner, 135 Pa. St. 281, 19 Atl. 1040; Gosline v. Place, *5332 Pa. St. 520; Bacon Abr. tit. Habeas Corpus, 133; Id. Certiorari, A; Hurd on Habeas Corpus, 355, 356; Church on Habeas Corpus, Secs. 262 — 264; State v. Glenn, 54 Md. 572; In re McCutcheon, 10 Mont. 115, 25 Pac. 97. In Grieb v. Kuttner, supra, the court, after noticing the earlier cases, proceeds: ‘In Berger v. Smull, 39 Pa. St. 302, as already-noted, there was no habeas corpus, and the result of the case is that certiorari and habeas corpus may be used separately or together; and, when used concurrently, the question which is the principal writ and which merely ancillary will depend on the facts of the particular case and the nature of the relief sought. ’ ’ The office of the habeas corpus is to bring up the body only, and the court of judge will upon the return in this proceeding judge of the illegality of the imprisonment upon the commitment.. If this be irregular merely, or it does not appear therefrom that the inferior court wаs without jurisdiction, the complainant will be remanded. If, however, it is the purpose of the complainant to have the proceedings before the justice reviewed, and the judgment or order therein annulled, on the ground of want or excess of jurisdiction, then certiorari may issue to the justice to bring up the record, to enable the superiоr court or its judge to take such action therein as may be proper. The office of the writ is thus explained in the citation from Bacon’s Abridgement, supra. (In re Bion, 59 Conn. 372, 20 Atl. 662, 11 L. R. A. 694.)
Whether, under our statute (Penal Code, Sections .2753, 2754), these remarks apply generally to habeas corpus proceedings, we do nqt decide. They are certainly pertinent and applicable to the facts of this case; for the reason that the complainant in his petition for the writ of habeas corpus does not attack the validity of the order made by the justice, or the sufficiency of the evidence upon which it was based, but assails the validity of the commitment only.
We conclude, therefore, that the application tо the district judge for the writ of certiorari, though .concurrent with the application for the writ of habeas corpus, was not merely ancillary to the latter proceeding, but was an independent pro*54ceeding for substantive relief, by direct attack upon the proceedings before the justice, which, as we have said, were not assailed by the habeas corpus, seeking to overturn the order resulting therefrom. In the absence of an appeal from the action of the district judge, in so far as it disposed of this proceeding adversely to the relator, he would have been finally concluded thereby. (State ex rel. Shing v. Lenahan, 17 Mont. 518, 43 Pac. 712.)
Passing now to the consideration of the appeal on this branch of the case, we shall consider briefly the contentions of the appellant in the order in which they are made.
1. Is the order of the justice void in failing to fix a term of imprisonment ? A person who has threatened to commit an offense against the person or property of another may be required by any magistrate, upon written complaint, to be arrested, and brought before him for examination. (Penal Code, Secs. 1430-1445.) The person so arrested may controvert the charge. Thereupon the magistrate must take the proof in writing. “If it appear that there is no just reason to fear the commission of the offense alleged to have been threatened, the person complained of must be discharged. ’ ’ (Penal Code, Sec. 1434.) If, however, there is just reason to fear the commission of the offense, the person complained of may be required to enter into an undertaking in such sum, not exceeding $5,000, as the magistrate may direct, with one or more sufficient sureties, to keep the peace toward the state, and pаrticulary toward the complainant. The undertaking is valid and binding for one year, and may, upon the renewal of the complaint, be extended for a longer period, or a new undertaking required. (Id. Sec. 1435.)
If the undertaking is given, the party complained of must be discharged. ‘ ‘If he does not give it, the magistrate must commit him to prison, specifying in the warrаnt the cause of commitment, the requirement to give security, the amount thereof, and the omission to give the same.” (Id. Sec. 1436.)-The statute does not provide the form of the order to be made by the magistrate; but, testing the order under consideration *55by applying to it the provisions of the sections quoted, it appears to be a literal compliance with them. It recites a finding of just cause to fear the commission of the offense charged, it.directs security to be given for one year to keep the peace toward the state, and particularly the complainant, and directs the person complained of, in default of security, to be committed to prison until the same be given. It might have been more explicit in reciting the charge upon the proof of which the undertaking was required; but we must not exact too much technical nicety from justices of the peace, who are not experienced lawyers; otherwise the law would more often exemplify the failure, rather than the accomplishment, of justice. A reference to the complaint on file containing the charge is sufficient.
Nor does the statute require the order of the justic to fix the term of imprisonment. The purpose of the statute is to prevent crime, not to punish one already committed. Therefоre the imprisonment which is the result of a failure to give bond is not a penalty for the threatened crime as proved at the hearing, but the alternative provided for preventing its accomplishment, where the person charged has refused or failed to obey the order to furnish security for the public peace. The imposition of imprisonment becomes necessary only after the other alternative has failed.
*56
The justiсe proceeded under the provisions of the statute, and his action was correct.
The judge of the district court should have entered an order affirming the proceedings of the justice. (Code of Civil Procedure, Sec. 1948.) The order of dismissal, however, was, in effect, the same, and his action will not be reversed for this technical error.
Let the judgment be affirmed.
Affirmed.