Ex parte Davenport

• Decision Date: 16 June 1925
• Parties: EX PARTE DAVENPORT. APPEAL OF OLSON, SHERIFF.
• Court: Oregon Supreme Court

236 P. 758

114 Or. 650

EX PARTE DAVENPORT. APPEAL OF OLSON, SHERIFF.

Supreme Court of Oregon

June 16, 1925

In bank.

Appeal from Circuit Court, Crook County; Geo. W. Stapleton, Judge.

Petition of Pearl M. Davenport for writ of habeas corpus to be directed to Olie H. Olson, Sheriff of Crook County. From judgment discharging petitioner, defendant appeals. Affirmed.

This is a habeas corpus proceeding, submitted on the brief of appellant, to determine whether petitioner's liberty is unlawfully restrained. It appears from the record that she was arrested for the crimes of selling and having in her possession intoxicating liquor. She appeared before J. O Powell, justice of the peace for Johnson Creek precinct Crook county, and entered a plea of guilty to both charges whereupon sentence was imposed upon her to pay a fine of $1,000. On failure to pay the fine, appellant, by order of the court, was committed to jail. In the petition for the writ it is averred that there is an unlawful imprisonment, in that the justice of the peace, at the time of imposing sentence, undertook to hold court in the city of Prineville Or., and not within the boundaries of the precinct for which he was elected. Petitioner asserts that the justice of the peace had no jurisdiction so to act, and that the order committing her to jail was null and void. In appellant's brief it is stated that Johnson Creek precinct is contiguous to, but not within, the corporate limits of the city of Prineville, and that Powell, "for convenience and to save taking prisoners to his home in the country, sometimes received pleas of guilty in the courthouse at Prineville." It so happened in the instant case. Olie H Olson, sheriff of Crook county, upon whom the writ of habeas corpus was served, made the following return thereto:

"I, Olie H. Olson, the duly elected, acting, qualified, and sworn sheriff of the County of Crook, State of Oregon, and upon whom a writ of habeas corpus was served in the foregoing entitled matter, do hereby certify that I do now have, and have had since the 6th day of October, A. D. 1924, in my custody as such sheriff, under restraint and confined in the county jail of said Crook County, Or., at Prineville, the above-named Pearl M. Davenport; that, as authority for such restraint and confinement, I have the commitment of the Justice's Court of the State of Oregon for Crook County, Johnson Creek Precinct, showing the conviction of the said Pearl M. Davenport for a crime committed against the laws and the statutes of the State of Oregon in such cases made and provided, as follows, to wit:

" 'In the Justice's Court for the Johnson Creek Precinct of Crook County, State of Oregon. State of Oregon, Plaintiff, v. Pearl Davenport, Defendant. Commitment.

" 'To the Sheriff or Any Constable of Said County--Greeting:

" 'In the Name of the State of Oregon: An order having this day been made by me that Pearl M. Davenport be held to answer upon the charge of possession and selling liquor contrary to statute, you are therefore commanded to receive her into your custody and detain him (her) until legally discharged. Pay a fine of $1,000 and costs or lay in jail at $2 a day until said fine and costs be satisfied. Dated at Prineville, Or., this 6th day of October, A. D. 1924. [ [Signed] J. O. Powell, Justice of the Peace.'

"And I do therefore hereby make this as my return to said writ."

To this return answer was made, denying each and every allegation thereof "save and except the allegations that are made and contained in petitioner's petition, for the issuance of the writ of habeas corpus on file herein."

On the issues above stated, the following judgment order was rendered:

"Now on this day comes on this matter to be heard the sheriff of Crook county, Or., Olie H. Olson, being present in person and by his attorney, Willard H. Wirtz, the district attorney for Crook county, Or., and this day made return of the writ of habeas corpus heretofore issued in this cause, and also brought the body of the said Pearl M. Davenport, the petitioner herein. And the petitioner herein being also represented by her attorney, G. L. Bernier, and upon hearing of the cause on argument of counsel, and the court now being fully advised and informed as to all matters and things concerned herewith, the court finds that the said Pearl M. Davenport is unlawfully imprisoned and detained in custody by the said Olie H. Olson. It is therefore ordered, adjudged, and decreed that the said Pearl M. Davenport be forthwith discharged from her said imprisonment by the said Olie H. Olson."

From which judgment the state appeals.

Willard H. Wirtz, of Prineville, for appellant.

BELT, J. (after stating the facts as above).

It is certain that the justice of the peace had no authority to hold court at the place where it is alleged in the petition sentence was imposed on the respondent. Section 949, Or. L., provides:

"A justice's

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