Ex parte Johnson

• Decision Date: 19 November 1908
• Parties: Ex parte JOHNSON.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

98 P. 461

1 Okla.Crim. 407, 1 Okla.Crim. 414, 1908 OK CR 35

Ex parte JOHNSON.

Court of Criminal Appeals of Oklahoma

November 19, 1908

Syllabus by the Court.

The Criminal Court of Appeals, the Supreme, district, and county courts, and the justices and judges thereof, have concurrent original jurisdiction in habeas corpus.

[Ed Note.-For other cases, see Habeas Corpus, Cent. Dig. §§ 35 36; Dec. Dig. § 46. ^[*]]

An order of commitment to hold for trial, issued by a magistrate before whom a person is brought for examination upon a felony charge, after such examination is concluded and a finding made, that there is sufficient cause to believe defendant guilty of a felony, is not "a process issued on any final judgment of a court of competent jurisdiction."

[Ed Note.-For other cases, see Habeas Corpus, Dec. Dig. § 21 ^[*]]

Before indictment or information filed, the duty of the court or judge upon habeas corpus hearing is similar to that of the magistrate upon the preliminary examination, and determines only the particular restraint complained of, and is not necessarily final.

[Ed. Note.-For other cases, see Habeas Corpus, Cent. Dig. § 119; Dec. Dig. § 117. ^[*]]

An order of a district judge remanding a prisoner on habeas corpus does not preclude him from making application to this court for habeas corpus. The constitutional right of the writ is not exhausted by the first remanding order.

[Ed. Note.-For other cases, see Habeas Corpus, Cent. Dig. § 121; Dec. Dig. § 120. ^[*]]

In habeas corpus proceedings the Criminal Court of Appeals is a court of original jurisdiction.

[Ed. Note.-For other cases, see Habeas Corpus, Cent. Dig. § 35; Dec. Dig. § 44. ^[*]]

Where there is no legal or competent evidence to sustain it, an order of commitment is void.

[Ed. Note.-For other cases, see Habeas Corpus, Cent. Dig. § 24; Dec. Dig. § 29. ^[*]]

Where there is evidence to connect a petitioner charged with murder with the time, place, and motive for killing, the writ will be denied, and petitioner remanded.

[Ed. Note.-For other cases, see Habeas Corpus, Cent. Dig. §§ 87-89; Dec. Dig. § 102. ^[*]]

Original application by Charles Johnson for habeas corpus and for certiorari in aid thereof. Habeas corpus denied, and petitioner remanded to the custody of the sheriff.

This is an original proceeding in this court for a writ of habeas corpus and for a writ of certiorari in aid thereof. The petition was signed and verified by the petitioner, and, omitting the formal parts, was as follows:

"Your petitioner, Charles Johnson, most respectfully represents to your honors that he is now illegally and unlawfully restrained of his liberty and detained by M. B. Louthan, sheriff of Grady county, Okl., in the county jail at Chickasha, in said county and state; that he is held in custody by virtue of a certain commitment issued by James M. Davis, a justice of the peace in and for Union township, Grady county, Okl., upon a charge of murder. A copy of said commitment is hereto attached and made a part of this petition, marked 'Exhibit A.'

"Your petitioner states that heretofore, to wit, on or about the __________ day of September, 1908, he was arrested upon a warrant issued by said justice of the peace, based upon a certain complaint made against him and one E. P. Slade and Fred Wilkinson, charging them with the crime of the murder of one Sam Potter, on the 12th day of September, 1908; that he was thereafter carried before said James M. Davis, justice of the peace aforesaid, for the purpose of having an examining trial, and the state introduced its testimony and evidence, and the defendants their testimony, and as a result of said examining trial said defendant was committed and incarcerated in jail, without bail, upon the charge of murder, as aforesaid. A copy of said warrant is hereto attached and made a part of this petition, marked 'Exhibit B.'

"Your petitioner further avers that there was no competent or legal evidence introduced at said trial before said James M. Davis, as aforesaid, in any way connecting your petitioner with the said crime of murder for which he was charged, and no evidence introduced upon and from which the said James M. Davis, justice of the peace, aforesaid, could judicially determine that there was reasonable ground or probable cause to believe your petitioner guilty of said crime of murder as aforesaid, and said commitment issued by said James M. Davis, as aforesaid, was without authority of law and exceeded the jurisdiction of said justice of the peace, and therefore the same is null and of no force and effect.

"Your petitioner further states that on, to wit, the __________ day of September, 1908, he, together with the said E. P. Slade and Fred Wilkinson, presented their petition to the Honorable Frank M. Bailey, district judge of the Fifteenth judicial district, Okl., together with a true and correct copy of all the testimony and evidence taken before the said James M. Davis in the examining trial as aforesaid for a writ of habeas corpus, and, after consideration of said petition and the evidence attached thereto, the said Honorable Frank M. Bailey, as aforesaid, made an order allowing your petitioner and the other parties charged with said murder bail in the sum of $1,000 each, but in said order held that there was no evidence connecting your petitioner and the other defendants with said crime, except a few indirect circumstances.

"Your petitioner states that the said Honorable Frank M. Bailey, as aforesaid, committed grievous errors in refusing to grant said writ of habeas corpus absolutely, and under the said decision made by the said Honorable Frank M. Bailey your petitioner was entitled to his liberty and to be discharged from custody. A copy of said order made by said district judge, as aforesaid, is hereto attached and made a part of this petition, marked 'Exhibit C.'

"Your petitioner further states that he was and is unable to execute said bond in the sum of $1,000, as aforesaid, and that by reason thereof, and by reason of the facts herein alleged, he is still deprived of his liberty unlawfully and without any legal authority.

"Your petitioner alleges that he is entitled to have a writ of certiorari issued by this court, directed to the said Honorable Frank M. Bailey, as aforesaid, commanding him to send up the record, including the petition and the exhibits thereto, including all the evidence introduced on said hearing, in order that this honorable court may examine into the unlawful imprisonment of your petitioner, as alleged herein.

"Wherefore your petitioner prays that this honorable court grant him a writ of habeas corpus herein, and a writ of certiorari directed to the said Honorable Frank M. Bailey, district judge, as aforesaid, to the end that his unlawful imprisonment may be inquired into, and that he may be discharged from said unlawful imprisonment and restored to his liberty, and will ever pray.

"F. E. Riddle, Attorney for Petitioner."

Omitting Exhibits A and B, Exhibit C of said petition was as follows:

"Exhibit C.

"In the District Court in and for the Fifteenth Judicial District, Grady County, Oklahoma.

"In re the Application of Charles Johnson, for Writ of Habeas Corpus. Order Admitting to Bail.

"Now at this time came on to be heard upon evidence before the committing magistrate and additional evidence the application and petition of Charles Johnson for writ of habeas corpus before the undersigned district judge, and he, being well and sufficiently advised in the premises, is of the opinion that said defendant is illegally restrained of his liberty and entitled to bail, and it appearing to the undersigned district judge from the record herein that there is no legal and competent testimony connecting said petitioner with the crime for which he is charged, except indirect circumstances, and that he should be admitted to bail in the sum of $1,000, it is therefore considered and ordered by the undersigned district judge that said petitioner, Charles Johnson, be and he is hereby admitted to bail in the sum of $1,000, and upon the execution of said bail, with sufficient security, as required by law, the sheriff of Grady county is hereby ordered and directed to release said petitioner from his custody and restore him to his liberty under said bond.

"Witness my hand this the 10th day of October, 1908.

"Frank M. Bailey, District Judge."

On the 24th day of October, 1908, writs were allowed as prayed for in said petition, returnable the 27th day of October, 1908, at which time respondent filed his return showing that he held said petitioner by virtue of a commitment issued, as alleged in said petition, and there was also filed in this court the record of said cause, as shown by an agreed statement filed therewith, which is as follows: "It is hereby agreed by and between attorney for petitioner and B. B. Barefoot, county attorney, that the above and foregoing contains a true and complete record of all the evidence, testimony, and orders made in the habeas corpus proceeding before Hon. Frank M. Bailey in said cause, and contains all the evidence considered by said district judge. F. E. Riddle, Attorney for Petitioner. B. B. Barefoot, County Attorney." The attorney for petitioner also filed a waiver of the presence of the petitioner, and submitted the cause on the petition, the return, the record, and the evidence under the agreed statement.

F. E. Riddle, for petitioner.

B. B. Barefoot, County Atty., and W. C. Reeves, Asst. Atty. Gen., for respondent.

DOYLE J.

It is alleged by petitioner that his restraint is illegal and unauthorized, first, because the magistrate who issued the warrant and commitment acted without authority of law, and exceeded the...