State v. DeckerState v. Decker
- Reporters:
- , ,
- Before:
- Ames
Onе John F. Decker had been arrested and was detained by the sheriff of Lancaster county, and in the common jail of that county, upon a warrant issued by a justice of the peace, and charging him with having committed the offense of perjury while testifying as а witness upon the trial of a civil action in the district court for that county, Decker applied to the district court for, and оbtained, a writ of habeas corpus under which to have inquiry made into the legality of his detention. The sheriff to whom the writ was directеd made due return thereto, producing the person of the рetitioner as therein commanded, and the court, after а hearing involving the taking of 166 pages of typewritten testimony, deсided that there was no reasonable or probable cause for the accusation made in -the warrant, and on thе 23d day of February, 1905, ordered that the prisoner be discharged frоm custody. The county attorney, who was present at the heаring, took exceptions to certain orders and rulings of the сourt during the progress thereof, and afterwards caused a bill of exceptions of the same to be made up and settled by the district judge *34in tbe manner prescribed by section 483 of tbe criminal code. On Jnne 8, 1905, before tbe late act regulating appeals to this court bad taken effect, the county attornеy caused said bill of exceptions, together with a transcriрt of tbe proceedings in connection with which it was preрared, to be filed with tbe clerk of this court, as well as a pеtition in error in which it is recited that tbe county attorney and deputy county attorney “proceed under tbe provisions of section 515 of tbe criminal code,” and in which they assign certain errors as having been committed by tbe court during tbe progress of tbe hearing, and complain that tbe court was without jurisdiction to make or render an order of discharge of tbe prisoner. But tbe document, which is signed by the county attorney alone, and in bis official character only, does not expressly pray tbe judgmеnt of tbe court upon its assignments or for a recaption оf the accused.
It was decided by this court in In re Van Sciever, 42 Neb. 772, that a final order by a district court, or judge, made in a proceeding in habeas corpus, was reviewаble in this court by proceedings in error, but that such a procеeding is a civil action and tbe procedure appliсable to obtaining a review in this court is that provided by ¿be cоde. It follows that tbe suit in this court must be prosecuted by or on behаlf of some one having an interest in tbe controversy, that is, tbe рetitioner, or some person or persons claiming a right tо bis custody, and that a bill of exceptions, if one is required, must be mаde and settled in tbe manner provided by statute for tbe making of such documents in civil actions. Sections 483 and 515 of tbe criminal cоde, to which alone tbe procedure in this case was attempted to be made conformable, are not applicable to such actions as tbe present, and this cоurt is therefore without jurisdiction.
It is recommended that tbe petition in error be dismissed.
Oldham and Eppeeson, CC.., concur.*35By the Court: For the reasons stated in the foregoing opinion, it is ordered that the petition in error be
Dismissed.