33 Utah 345 | Utah | 1908
Oh tbe 15th day of June, 1907, a complaint in due form was filed before Joseph J. Williams, a justice of the peace of Salt Lake county, charging Emil Winnovich, the respondent in this appeal, with the crime of murder. He was duly arrested upon a warrant, and taken before said justice, who regularly proceeded to examine into the charge, and on the 18th day of June, 1907, after hearing the evidence adduced thereon, found that there was probable cause to believe that the accused, Emil Winnovich, had committed the crime of murder, and entered an order or judgment requiring the accused to appear before the district court of Salt Lake county, and to that end issued a mittimus or commitment directed to the sheriff of Salt Lake county, the appellant herein, to safely keep said accused and bring him before the district court of Salt Lake county to be dealt with according to law. The appellant accordingly held the respondent in custody in the common jail of Salt Lake county by virtue of said commitment. On the 26th day of June, 1907, the respondent presented his petition to George G. Armstrong, one of the district judges of Salt Lake county, wherein he alleged that he was unlawfully restrained of his liberty, and prayed that a writ of habeas corpus issue requiring appellant to show cause why he detained the respondent and restrained him of his liberty. Appellant dnly produced the respondent in court as directed by said writ, and for cause of detention produced the commitment issued as aforesaid. On the 29th day of June following the petition was submitted to said district judge, sitting as a court, without argument. The evidence adduced at the hearing before the justice, duly certified to by him, was submitted to the court, together with the return of appellant as aforesaid. On the 9th day of July, 1907, the court granted the petition of respondent, upon the sole ground, as appears from the record, that “it does not appear to the court that there is sufficient evidence in the record to warrant the holding of defendant.” The court accordingly entered an order or judgment discharging the respondent from the custody of
A motion to dismiss tbe appeal is interposed by respondent upon the grounds (1) that this is in effect an appeal by the state, and-that the state has not the right to appeal in such a proceeding’: (2) that, in any event, no appeal lies from habeas corpus proceedings in this state because the. order or judgment’ of discharge is not a final judgment.
We will first examine into' the first ground urged why this appeal should be dismissed, namely, that an appeal in this case is an appeal1 by the state. This brings up> the question whether the proceedings are civil or criminal. We thinlc there is little, if any room for doubt, in view of the authorities, that the proceedings are civil, and not criminal. The purpose is to protect or vindicate a civil right. The person is restrained of his liberty, and the purpose of the whole proceeding is to have’ that liberty restored to him at the earliest possible moment. When liberty is restored, the proceeding has accomplished its purpose, and no other or further consequences follow. That habeas corpus proceedings are civil, and the reasons why they are so, are well stated by Mr. Chief Justice Waite in Ex parte Tom Tong, 108 U. S. 359, 2 Sup. Ct. 872, 27 L. Ed. 826, where he says:
“The writ of habeas corpus is the remedy which the law gives for the enforcement of the civil right of personal liberty. Resort to it sometimes becomes necessary, because of what is done to enforce laws for the punishment of crimes, but the judicial proceeding under it is not to inquire into the criminal act which is complained of, but into the right to liberty notwithstanding the act. Proceedings to enforce civil rights are civil proceedings, and proceedings for the punishment of crimes, are criminal proceedings. In the present case the petitioner is held under criminal process. The prosecution against him is a criminal prosecution, but the writ of habeas corpus which he has obtained is not a proceeding in that prosecution. On the contrary, it is a new suit brought by him to enforce a civil right which he claims, as against those who are holding him in custody under the criminal process. If he fails to establish his right to his liberty, he may be detained for trial for the offense; but, if he succeeds, he must be discharged from custody. The proceeding is one instituted by himself for his liberty, not by the government to punish him for his crime.”
Having thus established that a proceeding in habeas corpus is' civil, what is its character under our system of procedure? Is it a suit,, an action, or may it be classed as a ' special proceeding ? It seems to us that there can be no doubt that it belongs to what, under the Code, are termed -“special proceedings.” This is also the conclusion reached
Can the appeal stand as against the second ground urged ? It is asserted that the decisions of this court in Mead v. Metcalf, 7 Utah 103, 25 Pac. 729, and In re Olasby, 3 Utah 183, 1 Pac. 852, are decisive of this question. It is true that in Mead v. Metcalf this court held that an order or judgment discharging a prisoner upon habeas corpus is not a final judgment from which an appeal will lie; and it was further held in both cases referred to that no- appeal is permissible in any event in habeas corpus proceedings. Since' those cases were decided the territorial government has been merged into a state government, and the right of an appeal is fixed in the Constitution of the state, which, so far as material here, is found in section 9 of article 8, which provides: “Erom all final judgments of the district courts, there shall be a right of appeal to the Supreme Court. The appeal shall be upon the record made in the court below, and under such regulations as may be provided by law.” The right of appeal, therefore, is a constitutional right, which cannot be interfered with by the legislature. Under the law in force when tne two Utah eases above referred to were decided the statute likewise permitted an appeal from final judgments. If, therefore, a judgment in a certain proceeding was not final under the territorial statute, it would seem that, for the same reasons, it will not be final under the Constitution. In view that the territorial court has directly passed upon the question, and for the reason that the authorities are in hopeless conflict upon the question, we should not, under ordinary circumstances, be inclined to reconsider the question, but would feel constrained to abide by the decisions of the territorial Supreme Court of which this court
.“It is-the termination of the particular action ■ which marks the finality of the judgment. A decision which terminates the suit, or put3 the case out of court without an adjudication on the merits, is nevertheless a final .judgment.” '
This doctrine is supported by many cases, some of which are cited by. Mr. Justice Straup and need not again be cited here. If this were not so, it, would not be permitted to appeal from a judgment granting an involuntary nonsuit, because the, judgment in such a case .does not estop, the .plaintiff from prosecuting another action for the same cause of action. The test of finality for the purpose of an appeal, therefore, is not necessarily whether the whole matter involved in the action is concluded, but whether the particular proceeding or action is terminated by the judgment. If it is, and, in order to proceed farther with regard to the same subject-matter, a. new action or proceeding must be commenced, then, as a general rule, the judgment which ends the particular .action or proceeding is final for the purposes of an appeal, if an appeal is permissible at all. Both of the Utah cases referred to have thus been greatly weakened with regard to the doctrine of finality of judgments by what is said in
It is argued that, although the language of a constitutional provision or a statute be such as would authorize or confer the right of appeal generally, in view that the policy of the law with regard to appeals in habeas corpus proceedings is opposed to the exercise of the right, therefore appeals in such proceedings should not be permitted by the courts under general provisions, but only when the right to an appeal is given by a special statute or by constitutional provision. This argument is based upon the theory that to permit appeals in habeas corpus proceedings destroys the effectiveness of the remedy; that it may delay the party in obtaining his liberty, the very thing that.by habeas corpus was intended to be speedily restored to him. It is urged that, if appeals are permitted, then the judgment of the court discharging the prisoner must be suspended, and the very purpose of the writ is defeated. This argument or conclusion, to our minds, assumes that to follow which does not follow. Without an express statutory provision to that effect, an appeal does not of its own force suspend the judgment in a habeas corpus proceeding. (21 Cyc. pp. 338-341.) Even in those states where an express right of an appeal is given by statute, the courts have held that the taking of an appeal does not suspend the judgment. (State v. Kirkpatrick, 54 Iowa 313, 6 N. W. 588.)
But this question is not invited in this case, and we there
This brings us to the merits of the case. It appears from the record and judgment of the district court that the respondent ivas discharged upon the sole ground that, in the opinion of the court, the evidence adduced at the preliminary hearing was insufficient to show probable cause to- believe that respondent was guilty of the crime charged. It is clear, therefore that the district court undertook to determine from the evidence whether there was probable cause or not. Did the court have the legal right to do this in a habeas corpus proceeding? Upon this question, again, the courts are not in harmony. As a general rule, the courts hold that on habeas corpus, in the absence of a statute conferring the right, the courts cannot go into the evidence adduced before the magistrate, but must confine the inquiry to questions of jurisdiction, and, if it be found that the magistrate had jurisdiction of the subject-matter and the person of the defendant,
“In the great anxiety on the part of our Legislatures to make the most ample provisions 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*359 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: (1) Whether the court or officer issuing the process under which he is detained had jurisdiction of the case, and has acted within that jurisdiction in issuing such process. If so, mere irregularities or errors of judgment in the exercise of that jurisdiction must he disregarded on this writ, and must be corrected either by the court issuing the process, or on regular appellate proceedings. (2) If the process is not void for want of jurisdiction, the further inquiry will be made, whether, by law, the case is bailable, and, if so, bail will be taken if the party offers it; otherwise he will be remanded to the proper custody.”
The writ of babeas corpus cannot be made to serve tbe purpose of an appeal or writ of review,,unless some statute specially authorizes this to be done. But, even when authorized by statute, such review must be strictly limited to the special proceedings to which the statute applies. This is well illustrated by the decisions emanating from the same courts in habeas corpus proceedings. In California, where there is a special statute authorizing the courts on habeas corpus to determine whether or not there is probable cause to commit the accused on preliminary hearing by the magistrate, the Supreme Court of California hold that the courts on habeas corpus may examine into. the facts to determine whether there is any evidence that justifies the findings of probable cause by the magistrate. (People v. Smith, 1 Cal. 9.) Similar holdings based upon similar statutes are found in State v. Hayden, 35 Minn. 283, 28 N. W. 659, and other cases; but the authority to do this comes from the statute, and, where there is no statutory provision, the courts do not extend the scope of the investigation on habeas corpus so as to make the proceeding in effect one of review. This is again illustrated by the decisions of the same courts, to which we have already referred, in the following cases: State v. Kinmore, 54 Minn. 135, 55 N. W. 830, 40 Am. St. Rep. 305; Ex parte Miller, 82 Cal. 454, 22 Pac. 1113. Where the common law is in force, or under statutes which are in effect merely declaratory of the common law, the courts, on habeas corpus, may not extend the investigation beyond jurisdictional matters. The following cases, among a large num
But tbe district court in tbis proceeding went beyond wbat tbe authorities justify even in those states where there arc special statutes permitting courts on habeas corpus to review the findings of tbe magistrate made on preliminary examinations. In those states tbe general rule is that the court or judge on habeas corpus may examine into tbe evidence for tbe purpose only of determining whether there is any legal evidence which fairly tends to support tbe findings and order of tbe magistrate. (State v. Hayden, supra; United States v. Greene [D. C.], 108 Fed. 816; In re Henry, 13 Misc. Rep. 134, 35 N. Y. Supp. 210; State v. Beaverstad, 12 N. D. 527, 97 N. W. 548; Ex parte Becker, 86 Cal. 402, 25 Pac. 9.) Tbe evidence in tbe record directly and positively connects tbe respondent with tbe shooting which it is claimed resulted in the death of the person named in tbe complaint filed with tbe magistrate. Tbis being so, tbe district court was not authorized to pass upon tbe competency of tbe evidence in a habeas corpus proceeding. „In view of tbe statutes of tbis state governing preliminary examinations and tbe fundamental principles underlying proceedings in habeas corpus, we are constrained to bold that where tbe record, certified to by tbe magistrate, affirmatively shows wbat we have stated tbe record in tbis case discloses, and there is no attack upon tbe truthfulness of tbe facts recited in tbe record, tbe court is powerless to go behind tbe judgment of tbe magistrate. If, however, tbe accused should allege and offer to prove that tbe magistrate did not in fact bear any evidence in support of tbe- charge, and tbe accused did not, with tbe consent of the state, waive an examination, and that tbe record showing tbe proceedings of tbe magistrate is false, then tbe court or judge, on habeas corpus proceedings, should-bear tbe evidence' in that regard; and, if be finds that there
Tbe order or judgment of tbe district court discharging tbe respondent therefore should be, and accordingly is, reversed.