Ex parte Hendersen
| Decision Date | 17 February 1914 |
| Citation | 145 N.W. 574,27 N.D. 155 |
| Parties | Ex parte HENDERSEN. |
| Court | North Dakota Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
The common-law privilege exempting suitors and witnesses, residents of a foreign state, in civil cases, on their claim of privilege, from service of civil process while in attendance as civil suitors or witnesses in the courts of this state, until after a reasonable opportunity afforded them to return to their abode, does not include nonresident defendants in criminal proceedings, temporarily here to defend in the criminal action against them, when the criminal proceedings are prosecuted in good faith, and not fraudulently instituted merely for the purpose of procuring the presence of the foreign resident that he might be here served with civil process.
To a nonresident defendant in a criminal case, the law extends no such privilege, and he may while here be served with a summons and complaint, and arrested under bail and arrest proceedings, an incident to such civil action, and held to civil bail, without there being afforded him any opportunity to return to his home in the foreign state.
Application of Frank Hendersen, held on bail and arrest proceedings, for writ of habeas corpus. After full hearing, the writ is denied, and the petitioner remanded to custody.Wolfe & Schneller, of Wahpeton, and E. S. Cary, of Minneapolis, Minn., for petitioner. Purcell, Divet & Perkins and W. S. Lauder, all of Wahpeton, for Budack.
One Frank Hendersen has petitioned this court for a writ of habeas corpus. As grounds for the writ, proof by affidavits has been submitted, establishing: That from August 1st to December 25th last Hendersen was a resident of Richland county in this state, and an employé of the Fairmount & Veblen Railway Company, a corporation. That on December 10th a criminal complaint charging embezzlement, a felony, was laid before a magistrate of said county, charging Hendersen with the commission of said crime, upon which a warrant for his arrest was duly issued. He was arrested thereon, and pending examination was held in $4,500 bail, which he furnished. That on December 25th Hendersen changed his residence to Minneapolis, Minn. This is proven by his own affidavit and those of residents of Minneapolis. That on said date he rented apartments in that city, to which he has moved his personal belongings, and where he has taken up his abode, and at which place he claims to be actually residing. Although the opponents to the granting of this writ claim this residence to be merely colorable, and for the purpose of gaining some temporary advantage in these legal proceedings, and have offered affidavits tending in part to contradict the defendant's statements as to residence, and to impeach his good faith, we find in favor of the petitioner on this question of fact under the proof and presumptions of law thereto applying, and find that on December 25th last the petitioner did change his residence from North Dakota to Minneapolis, Minn., and that on the date of this petition he was and now is a bona fide resident of Minnesota. Petitioner has returned from Minnesota without extradition for the sole purpose of defending the criminal charge of embezzlement so pending against him in the courts of this state since December 10, 1913, at all times until January 17, 1914, on which last date, after a preliminary examination lasting over two weeks, defendant was held for trial before the district court upon a charge of felony, which trial, according to the showing made, will probably take place at the coming term of district court to be held in June of this year. In holding defendant for trial, the examining court has found the existence of probable cause to believe that felony has been committed, and that the defendant is guilty thereof. He was so held in $4,500 bail pending trial, and has furnished a cash deposit in lieu of and as a bond in said amount for his appearance to answer said charge at the next term of the district court for Richland county.
After issuance of an order discharging him on bail approved, and about one minute after his release on bail, and while he was still in the courtroom of the magistrate taking bail, he was served with a summons, complaint, and order for arrest on bail and arrest proceedings in an action wherein the corporation procuring his arrest for embezzlement is plaintiff, and the petitioner is defendant. The order upon arrest and bail issued out of the district court of Richland county, directing that this petitioner be held in custody until he shall give bail on said order in the sum of $5,000, as provided by law. The proceedings upon bail and arrest are in proper form, and the order of arrest and bail issuable in such an action. Petitioner is imprisoned in default of bail. Without moving to vacate the service or the proceedings, he made application to the district judge of the district in which he was confined for the issuance of a writ of habeas corpus, which was denied after full hearing on the merits. He here contends to be illegally restrained of his liberty, alleging that as a citizen of Minnesota he is privileged from arrest in attending upon trial of the criminal action against him pending in the courts of this state, and not subject to interference by arrest upon mesne process during the time of his attendance and until a reasonable time afforded him to return to Minnesota. This is the issue presented.
[1] We have no statute bearing upon or controlling this situation. Had petitioner been in attendance as a witness or suitor in the civil courts of this state, as a citizen of Minnesota or any foreign state, he would be privileged, and therefore exempt upon his claim of privilege from legal service in a civil suit (Hicks v. Besuchet, 7 N. D. 429-443, 75 N. W. 793, 66 Am. St. Rep. 665), or from arrest in arrest and bail proceedings, which are merely ancillary to the civil action of which the arrest and bail is but an incident. Of the existence of this general privilege there is no question. Under the common law to avail such privilege must be claimed.
[2] But petitioner is before us in a case in which the reasons for this common-law privilege so applying in civil cases are entirely absent. As a suitor or witness in a civil case he could not be compelled to attend or to submit himself to the jurisdiction of our courts. And his entering the state must be voluntary, either to aid others by voluntarily appearing or testifying in their behalf, or to defend his own interests, and voluntarily submit his cause to our courts for arbitrament. In either case the common law, on grounds of public policy, has privileged him from harrassment of civil proceedings, the interests of justice and public policy demanding it, and has thus encouraged the voluntary appearance of the nonresident who is under no compulsion to appear, to disclose, or to litigate in a civil case in our courts. In either or any event he is voluntarily aiding in the administration of justice. But where the party served has been brought under extradition proceedings or by force of criminal process from the foreign state into ours to here answer for crime committed within our boundaries, if at all, the defendant is not voluntarily here. He has no choice in the matter. He is rendering organized society no service. Instead he is here charged with being a menace to it. While presumed innocent, he is not fulfilling any office of good citizenship nor voluntarily promoting justice. And except in sham criminal proceedings wherein the criminal process is made a mere pretense upon which to perpetrate a fraud upon a defendant by procuring his involuntary attendance, not with the bona fide intent of his being criminally prosecuted, but instead to secure service of a summons or process in a civil suit upon him, the criminal proceedings being but an instrument used for the collection of a debt, the reasons upon which the common-law exemption is given to a civil suitor or witness are mostly, if not altogether, absent. The question before us is whether such privilege accorded the civil suitor or witness shall be extended, regardless of nonexistence of reason, to cover the case of ...
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