39 N.W.2d 557 | Neb. | 1949
The district court for Lancaster County found that the petition of appellant for a writ of habeas, corpus did not allege sufficient facts to justify the issuance of a writ, and entered a judgment of dismissal. This is an appeal from that adjudication.
. The petition is the only pleading in this case. It was the right and duty of the court to deny the petition and dismiss the case if the facts well pleaded therein, when accepted and considered as true, were insufficient to entitle appellant to a writ of habeas corpus. In re Application of Dunn, 150 Neb. 669, 35 N. W. 2d 673; Jackson v. Olson, 146 Neb. 885, 22 N. W. 2d 124, 165 A. L. R. 932; Alexander v. O’Grady, 137 Neb. 645, 290 N. W. 718, certiorari denied, 311 U. S. 682, 85 L. Ed. 439, 61 S. Ct. 59. The sufficiency of the allegations of a petition to support a writ of habeas corpus may be examined and determined by the court before a writ is issued or a pleading made by the person charged with the unlawful detention, and if they are not sufficient to require a discharge of the petitioner, a writ may be denied. McAvoy v. Jones, 149 Neb. 613, 31 N. W. 2d 740; Alexander v. O’Grady, supra. Such a writ is not demandable of course, but legal cause therefor must be shown as a prerequisite of judicial action favorable to petitioner. In re Application of Dunn, supra.
. A transcript of the proceedings had in the prosecution of appellant, attached to and made a part of the petition, shows the charge was filed against him in the county court on October 25, 1939, and after conferring with one of his attorneys he appeared the next day in that court, pleaded not guilty, and preliminary hearing was set for six days later. Two days before that date he appeared by his attorneys, McNeny.’& Sprague, and Shafer & Nelson, and obtained a postponement thereof, until November.9, 1939, when hearing was had and he was
Habeas corpus is a collateral and not a direct proceeding when regarded as a means of attack upon a judgment imposing a sentence for a crime, and because of this, facts, as distinguished from legal conclusions, are required to be alleged by the petitiorier to negative the legal force and effect of the judicial record, including the presumptions of validity and regularity which the terms thereof invoke. Hulbert v. Fenton, 115 Neb. 818, 215 N. W. 104; Alexander v. O’Grady, supra. Persons convicted of crime for which they stand committed are excepted from those entitled to the benefit of a statute of this state on the subject of habeas corpus. § 29-2801, R. S. 1943. The available issue ordinarily upon an application for a writ of habeas corpus by á prisoner detained by virtue of a verdict, sentence, and commitment in' a criminal action is the validity thereof. It has often been affirmed by this court that to obtain release from a sentence by habeas corpus, it must be void, and that it may not be availed of to discharge a prisoner from a-sentence of penal servitude, if the court imposing the sentence had jurisdiction of the offense and of the per-* son of the defendant, and the sentence was within the
The appellant appeared with his counsel at the time set for trial; did not renew or interpose any objection or any additional reason for not then proceeding with the trial; had and accepted the services of one or more (had a total of five) attorneys at each part of the proceedings from the time of his first appearance in county court until his conviction and sentence; and made no objection or complaint to the court as to his representation or the action or omission of his counsel. The attorneys for appellant were not furnished by the State, and it was not responsible for their selection, the quality of their service, or any error in their judgment. The State has no power or duty to assure a defendant charged with a crime that he has the ablest counsel, or to guarantee him that his counsel will please him or obtain a favorable result. Appellant did not ask the State to provide him legal counsel, and he can obtain no relief now on the claim that he was -not properly defended. Alexander v. O’Grady, supra; Jackson v. Olson, supra.
Appellant asserts that he did not have a lawful preliminary hearing, because thereof the law prohibited the filing of an information charging him with a crime in the district court, and the court was without jurisdiction to try and sentence him. § 29-1607, R. S. 1943. The claimed defect in the preliminary examination is the alleged disqualification of E. A. Cook, Jr., acting
Appellant complains vigorously and bitterly of the fact that he was detained for about three weeks in the isolation room of the penitentiary hospital and transferred from there against his will and without cause to and kept in the Hastings State Hospital for the insane for about three months and returned to the penitentiary. This contributes nothing to the right to have the remedy of habeas corpus. That remedy is not available, in the absence of statute authorizing it, for the purpose of inquiring into the legality of a particular form, manner, or place of confinement executively or administratively imposed upon a prisoner lawfully in custody in an authorized place under a valid sentence and commitment. The placing of a convict according to his classification, as sick or well, dangerous or peaceful, sane or insane, is a detail of prison management with which the court may not interfere. In re Application of Dunn, supra.
The judgment of the district court is correct and should be affirmed.
Affirmed.