Ex parte Brugneaux

Decision Date05 January 1937
Docket Number1979
Citation63 P.2d 800,51 Wyo. 103
PartiesEX PARTE BRUGNEAUX v. DANKOWSKI, SHERIFF BRUGNEAUX
CourtWyoming Supreme Court

APPEAL from the District Court, Lincoln County; H. R. CHRISTMAS Judge.

Proceeding for writ of habeas corpus by Vernon L. Brugneaux against M J. Dankowski. From a judgment denying the writ and remanding the petitioner, the petitioner appeals. On motion to dismiss appeal.

Motion dismissed.

For the appellant, the cause was submitted upon the brief of W. A Muir and George W. Bird, both of Rock Springs, without oral argument.

Appellant had not committed a crime against the laws of the State of Iowa and his arrest in Sweetwater County was illegal. Appellant was not in the State of Iowa on March 18, 1935, the date upon which the offense was alleged to have been committed. The question could have been determined in contempt proceedings in Iowa. 29 C. J. 69. The alleged offense is not extraditable. Sec. 5, Chap. 122, 1935 W S. L., People v. Dunston, (Mich.) 138 N.W. 1047; 30 C. J. 1098, 1099, 1102, 1115; Ryan v. Rogers, 21 Wyo. 311; Ex Parte Perry, (Calif.) 174 P. 105; Hall v. Green, 87 Me. 122; State v. Coolidge, (Wash.) 129 P. 1088; Gully v. Gully, (Tex.) 231 S.W. 97; Brown, et al. v. Smith, (R. I.) 30 L. R. A. 680. In view of all the circumstances, it is submitted that the trial court erred in dismissing the writ, and its judgment should be reversed.

For the respondent, there was a brief by Ray E. Lee, Attorney General; Thos. F. Shea, Deputy Attorney General; and William C. Snow, Assistant Attorney General, all of Cheyenne, and oral argument by Mr. Shea.

The guilt or innocence of accused may not be inquired into in a controversy arising over extradition. Chapter 122, Sec. 20, Laws 1935. The procedure is set forth in Section 5 of said Chapter 122. The offense involved did not require the presence of defendant in the State of Iowa at the time of the commission of the crime. 46 C. J. 1357. Innes v. Tobin, 240 U.S. 127. The burden was not upon respondent to prove that appellant was properly charged with a crime under the laws of Iowa. Ryan v. Rogers, 21 Wyo. 311; 11 R. C. L. 733, 719. The burden was upon accused to show the insufficiency of the indictment and evidence. Ryan v. Rogers, supra. Respondent was charged with a criminal offense. People v. Curry, 231 P. 358. A sufficient prima facie showing for the arrest of the accused having been made to the Governor, and that official having decided that the extradition papers furnished by the State of Iowa and so presented were sufficient to authorize the Governor to issue a warrant of arrest, it was incumbent upon accused to prove that he was not the person named in the indictment, and that the information or indictment was insufficient under the laws of Iowa, to constitute an offense.

BLUME, Chief Justice. RINER and KIMBALL, JJ., concur.

OPINION

BLUME, Chief Justice.

This is an appeal from a judgment entered in a proceeding for a writ of habeas corpus. The petitioner for the writ, Vernon L. Brugneaux, was indicted by the grand jury of Dallas County, Iowa, of the crime of child desertion, in that he did on March 18, 1935, "without good cause, wilfully neglect or refuse to provide for Vernon John Brugneaux, he being the legally adopted child of said defendant under the age of sixteen years and in a destitute condition." Later, on October 15, 1935, the county attorney of Dallas County, Iowa, filed an information against the petitioner for the same crime, but alleging the date of the commission thereof to be June 20th, 1934. Upon requisition from the Governor of Iowa, the Governor of this state caused a warrant to be issued, on October 17, 1935, for the arrest of the petitioner. The petitioner was thereupon arrested by the sheriff of Sweetwater County. In accordance with the Uniform Extradition Act, passed by the legislature of 1935 (Chapter 122, Sess. L. 1935) the prisoner was taken before the Honorable V. J. Tidball, Judge of the Second Judicial District, who, on October 19, 1935, granted the prisoner time until October 31st in which to apply for a writ of habeas corpus. On October 21, 1935, the prisoner filed his petition for that writ before the Honorable H. R. Christmas, Judge of the Third Judicial District of this state, who thereupon commanded the petitioner to be brought before him on October 24th, 1935. This was done, and a hearing on the writ was had before the court on that date. Judgment was entered in the cause by the court on October 24, 1935, dismissing the petition and remanding the petitioner to the custody of the sheriff. From that order the petitioner has appealed to this court.

A motion has been filed in this cause by the attorney general of this state for the dismissal of the appeal, on the ground that no appeal lies from the order entered herein by the trial court. The point has never been expressly decided by this court. The case of Miskimins v. Shaver, 8 Wyo. 392, 58 P. 411, was an original proceeding for a writ of habeas corpus in this court. It was held that the court, under the constitution, has original jurisdiction in such case, and that under section 51-101 (Rev. St. Wyo. 1931) the purpose is manifest to preserve the right of repeated applications for a writ of habeas corpus. But the court found it unnecessary to pass upon the right of appeal from an order in such proceeding made by a trial court. The opinion of Mr. Justice Corn, however, contains a long discussion of the point involved in this case, making a long discussion here unnecessary. In Posvar v. McPherson, 36 Wyo. 159, 253 P. 667, the court reviewed a judgment of the trial court, but the point whether an appeal lies was not raised, and we expressly reserved a decision on that point. There was no appeal or similar proceeding at common law from a judgment in a habeas corpus proceeding. Church, Habeas Corpus (2nd Ed.), Sec. 386. The Habeas Corpus act of this state was originally enacted substantially as it is today on December 2, 1869. It provided for successive applications for the writ, but did not provide for an appeal or review of any order of a district judge or court. The act was not a part of the law of civil procedure. It is now contained in Chapter 51 of the Revised Statutes of 1931, whereas the Code of Civil Procedure, is contained in Chapter 89 thereof. It is clear, then, that the legislature meant to keep the common law in force when the Habeas Corpus act was enacted in 1869, and that intention would seem to have been continued in force to the present time by keeping the act as a separate part of the law of the state, unless it is reasonably clear from other enactments that the Habeas Corpus act was intended to be modified, and the rule that no appeal lies from such proceedings was repealed. If such repeal took place, it was by implication, and such repeals are not favored. 59 C. J. 904. If it took place it was by Section 89-4801, Rev. St. 1931, which provides in part for a review of "an order affecting a substantial right, made in a special proceeding." It is not at all clear, however, that an order of a district judge or court, such as was entered in this case, affects a substantial right, when it is in no manner final, but the prisoner has the right subsequently to go before other judges and other courts of this state to secure his release.

The authorities are in hopeless conflict. Many of them, however, are readily distinguishable. In some of the states, as New York, Ohio, Minnesota, and other states, statutes expressly authorize an appeal from judgments in habeas corpus proceedings. In some states the statute does not permit successive applications. These cases do not aid us. Church on Habeas Corpus (2nd Ed.), Sec. 386, states:

"At common law, no appeal or writ of error was allowed from a judgment refusing a writ of habeas corpus, or from an order refusing to discharge the prisoner. There was, in fact, no need for such an appeal or writ of error as a renewed application could be made to every other judge or court in the realm, and each court or judge was bound to consider the question of the prisoner's right to a discharge independently, and not to be influenced by the previous decisions refusing discharge. The doctrine of res judicata was not held applicable to such a judgment. In the federal courts of the United States the doctrine of res judicata does not apply to an order remanding the prisoner, and the prevailing doctrine in the state courts in the absence of statutory provision is, that a judgment remanding the prisoner on habeas corpus is not appealable or subject to review, and that the doctrine of res judicata 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...

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  • State ex rel. Hopkinson v. District Court, Teton County
    • United States
    • Wyoming Supreme Court
    • 28 Febrero 1985
    ...County, Wyo., 621 P.2d 223 (1980); Foster v. Warden of Wyoming State Penitentiary, Wyo., 489 P.2d 1166 (1971); Ex parte Brugneaux, 51 Wyo. 103, 63 P.2d 800 (1937); Miskimins v. Shaver, Appellant agrees that he could have filed a petition for a writ of habeas corpus pursuant to § 1-27-104, W......
  • State v. Cantrell
    • United States
    • Wyoming Supreme Court
    • 18 Noviembre 1947
    ... ... "the rule is too well known to require citation of ... authorities, that repeals by implication are not ... favored." See also Ex Parte Brugneaux, 51 Wyo ... 103, 63 P.2d 800; Waters vs. State, 75 Okla. Crim ... 185, 129 P.2d 863 ... Citing ... extended lists of ... ...
  • Ex parte Sullivan
    • United States
    • Nevada Supreme Court
    • 2 Febrero 1948
    ... ... corpus proceeding, in any case in which the petitioner has ... been arrested and is being held under criminal process: ... Wisener v. Burrell, 28 Okl. 546, 118 P. 999, 34 ... L.R.A.,N.S., 755, Ann.Cas. 1912D, 356; Notestine v ... Rogers, 18 N.M. 462, 138 P. 207; and Brugneaux v ... Dankowski, Sheriff (Ex parte Brugneaux), 51 Wyo. 103, 63 P.2d ...          In ... Wisener v. Burrell, supra, we will quote from the syllabus ... (page 999 of 118 P.), as follows: ...          'An ... appeal does not lie from an order in habeas corpus, ... discharging ... ...
  • Thompson v. Harris
    • United States
    • Utah Supreme Court
    • 31 Diciembre 1943
    ... ... City of Portland , 153 ... Ore. 528, 57 P.2d 1292; Seattle First Nat. Bank v ... Spokane Co. , 196 Wash. 419, 83 P.2d 359; ... Brugneaux v. Dankowski , 51 Wyo. 103, 63 ... P.2d 800. It is only where there is a manifest inconsistency ... or conflict between a later and an earlier ... 503; Bruce v ... East , 43 Utah 327, 134 P. 1175. A good statement of ... the rule in this regard can be found in Ex parte ... Turner , 92 Vt. 210, 102 A. 943, 946, in which the ... court stated: ... "The ... relator insists that the complaint on which he ... ...
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