Anderson v. Britton

• Citation: 212 Or. 1,318 P.2d 291
• Parties: James Quinton ANDERSON, Appellant, v. J. M. BRITTON, Respondent.
• Decision Date: 13 November 1957
• Court: Supreme Court of Oregon

Page 291

318 P.2d 291

212 Or. 1

James Quinton ANDERSON, Appellant, v. J. M. BRITTON, Respondent.

Supreme Court of Oregon.

Argued and Submitted Sept. 11, 1957.

Decided Nov. 13, 1957.

Leonard H. Waterman, Burns, and Robert L. Welch, Lakeview, argued the cause for appellant. With them on the briefs was Herbert P. Welch, Lakeview.

Richard Beesley, Dist. Atty., Klamath Falls, argued the cause and filed a brief for respondent.

C. E. Luckey, U. S. Atty., Portland, filed a brief as amicus curiae.

KESTER, Justice.

This is a habeas corpus proceeding against the sheriff of Klamath county. The writ was issued and the sheriff made his return showing that plaintiff was held under an order of commitment pursuant to a conviction of second degree murder. Plaintiff made replication to the effect that the conviction was void because the state court was without jurisdiction; and in this connection he alleged that plaintiff is a tribal Indian, that the alleged homicide was committed, it at all, within the Klamath Indian reservation, and that the federal courts have exclusive jurisdiction over the alleged offense, notwithstanding Public Law 280 of the 83rd Congress. The trial court sustained a demurrer to the replication, plaintiff refused to plead further, the writ was dismissed, and plaintiff now appeals.

The facts with respect to the homicide are detailed in State v. Anderson, 207 Or. 675, 298 P.2d 195, wherein plaintiff's conviction was affirmed.

For present purposes, it is sufficient to note that the homicide in question was committed November 5, 1954, in Klamath county, and on November 12, 1954, plaintiff was indicted by the grand jury of Klamath county for first degree murder. He entered a plea of not guilty, the cause was transferred to Harney county for trial, and he was there convicted of murder in the second degree and sentenced to life imprisonment. The trial court was of the opinion that the Harney county jail was not a safe jail in which to keep the prisoner pending his motion for new trial and appeal, so an order was made directing that he be confined in the Klamath county jail until the appeal was heard and decided. The conviction was affirmed by this court on May 31, 1956, and his petition for rehearing was denied June 27, 1956. The present petition for writ of habeas corpus was filed in Klamath county on June 13, 1956, at which time plaintiff was still in the Klamath county jail.

We were advised by counsel at the argument that plaintiff is no longer in custody of the defendant, but was transferred to the Oregon State Penitentiary after the ruling on the demurrer to the replication in the lower court. The warden of the penitentiary is not a party to this proceeding. The question therefore arises whether the proceeding has become moot, as ordinarily it must be against the one having physical custody of the plaintiff. See 39 C.J.S. Habeas Corpus § 77b, p. 622, cf. ORS 34.420; Fehl v. Lewis, 155 Or. 499, 505, 64 P.2d 648; White v. Gladden, Or., 303 P.2d 226.

Although suggested upon argument, this question has not been briefed or argued here. We are of the opinion, however, that the function of habeas corpus cannot be defeated by a transfer of custody after a ruling in the trial court and pending appeal to this court. To hold otherwise would permit the jurisdiction of the court to be thwarted after it has once attached.

The common-law rule was that upon the return of the writ and the production of the person suing it out, the authority under which the original commitment took place was superseded, and thereafter the prisoner was in the custody of the court until the proceedings on the writ were finally determined. Barth v. Clise, 12 Wall. 400, 79 U.S. 400, 20 L.Ed. 393. See 25 Am.Jur. 245, Habeas Corpus § 148; 39 C.J.S. Habeas Corpus § 94, p. 659. The same principle seems to be embodied in ORS 34.640, which provides:

'Custody of party pending proceedings. Until judgment is given upon the return, the party may either be committed to the custody of the sheriff of the county, or placed in such care or custody as his age and other circumstances may require.'

Since there is a statutory right of appeal in habeas corpus, the proceeding is not finally determined until the appeal, if taken, has been decided. See Macomber v. Alexander, 197 Or. 685, 692, 255 P.2d 164.

In this case the order of the trial court dismissing the writ also remanded plaintiff to the custody of the sheriff of Klamath county. Notwithstanding his transfer to the penitentiary, for the purpose of this proceeding he remains constructively in the custody of the sheriff pending determination of the appeal. See Pomeroy v. Lappeus, 9 Or. 363, 365. Should it become necessary to reinstate the writ, the warden could be made a party defendant in this court.

The next question arises out of the fact that the matter plaintiff now seeks to raise could have been, but was not, presented in the criminal case itself. In Macomber v. State, 181 Or. 208, 218, 180 P.2d 793, 797, we said: '* * *. Normally, the extraordinary remedy of habeas corpus is not available to those who neglected to appeal * * *.' In Huffman v. Alexander, 197 Or. 283, 350, 251 P.2d 87, 253 P.2d 289, 298, we said: '* * * convicted persons should exhaust their remedies in the nature of an appeal and by motion for a new trial before resorting to habeas corpus, whenever on the facts of the case, either of those procedures would provide an adequate remedy.' And in Blount v. Gladden, 203 Or. 487, 280 P.2d 414, we held that habeas corpus could not be used to relitigate questions which had been decided on the appeal of the criminal case. See also Anderson ex rel. Poe v. Gladden, 205 Or. 538, 551, 288 P.2d 823, certiorari denied 350 U.S. 974, 76 S.Ct. 451, 100 L.Ed. 845; Alexander v. Gladden, 205 Or. 375, 395, 288 P.2d 219.

From the foregoing cases it would seem to follow that habeas corpus will not lie where an appeal was taken and the question was not raised, when if it had been raised, the remedy by appeal would have been adequate. It begs the question to say that want of jurisdiction renders the judgment absolutely void, because habeas corpus can never be used for collateral attack on a judgment unless the judgment is void. Garner v. Alexander, 167 Or. 670, 674, 120 P.2d 238, certiorari denied 316 U.S. 690, 62 S.Ct. 1281, 86 L.Ed. 1761; Huffman v. Alexander, supra, 197 Or. at pages 297, 299, 251 P.2d at pages 93, 94; Smallman v. Gladden, 206 Or. 262, 270, 291 P.2d 749.

Closely allied to the foregoing rule is the doctrine that, in the absence of special circumstances, the inquiry on habeas corpus is limited to examination of facts appearing upon the face of the record, and that evidence outside the record of the principal case will not be received to impeach the judgment. The authorities on this question were recently reviewed by the Supreme Court of California in Application of Carmen, Cal., 313 P.2d 817, decided August 2, 1957.

In that case Carmen had been convicted of murder and of assault with intent to murder, committed in 1950, and upon appeal from the conviction it was suggested at the oral argument that facts might be adduced showing that Carmen and his victim were Indians, and that the crimes had been committed within Indian country, with the result that exclusive jurisdiction over the offense might be vested in the federal courts. Those facts did not appear in the record, however, and the Supreme Court of California denied an application to produce such additional evidence on appeal, and it affirmed the conviction. People v. Carmen, 36 Cal.2d 768, 228 P.2d 281; Id., Cal., 265 P.2d 900; Id., 43 Cal.2d 342, 273 P.2d 521.

Thereafter the same court issued a writ of habeas corpus and made an order of reference. The referee reported that the petitioner and his victim were both unemancipated, tribal Indians, and that the crimes occurred on Indian allotment lands held in trust by the United States, which were not, however, part of a reservation.

Thereafter the writ was discharged, and the court declined to pass upon the effect of the referee's findings or the sufficiency of the evidence to support those findings, on the ground that:

'* * * in the absence of exceptional circumstances, which are not present here, petitioner may not contest, in this collateral attack upon the final judgments of conviction, the trial court's determination and exercise of jurisdiction, upon the basis of new and additional facts which do not appear in the trial court record.

* * *

* * *

'* * *. Petitioner therefore should have alleged and proved in the trial court any facts which he now claims might have had the effect of vesting exclusive jurisdiction in the federal courts.' 313 P.2d at page 819.

Four justices concurred in the opinion of the court, and three dissenting opinions were filed, so that the various aspects of the problem were fully explored, and recent decisions of the Supreme Court of the United States were considered at length. Part of the difference within the California court appears to have revolved about the question whether the case presented 'exceptional circumstances' so as to take it out of the rule enunciated by the majority.

Essentially the same question was considered by this court in Huffman v. Alexander, supra, where Chief Justice Brand, speaking for the court, distinguished between two different types of attack by habeas corpus upon judgments of conviction:

'* * *. By the first, the plaintiff expressly or by implication admits that the recitals in the record as to what was actually said and done in open court are true, but he seeks to present evidence outside of the judicial record which goes behind but does not contradict the essential recitals thereof. Illustrations of this type include cases in which a waiver of some constitutional right was induced by fraud or was the result of gross ignorance or the like. By the second method of attack the plaintiff alleges and...