Ex Parte Thompson

• Decision Date: 20 April 1908
• Citation: 109 S.W. 1171
• Parties: Ex parte THOMPSON.
• Court: Arkansas Supreme Court

Page 1171

109 S.W. 1171

Ex parte THOMPSON.

Supreme Court of Arkansas.

April 20, 1908.

Certiorari to Sebastian Chancery Court; J. V. Bourland, Chancellor.

Application of Clint Thompson for a writ of habeas corpus. Application denied, and petitioner brings certiorari. Judgment affirmed.

On the 6th of February, 1908, James P. Barry filed an affidavit before John Danner, a justice of the peace of Upper township, Sebastian county, alleging that Clint Thompson had, on the 5th of February, committed the crime of disturbing the peace. A warrant for his arrest was issued to the constable of the township, and he was arrested, and his trial set for February 7th. On the 7th the case was tried before the justice on a plea of not guilty, and a plea to the jurisdiction of the court, and the justice made the following finding: "That said offense was committed in that part of the said state and added to said state by an act of Congress approved February 10, 1905 (33 Stat. 714, c. 571 [U. S. Comp. St. Supp. 1907, p. 378]), and by the act of the Legislature of said state of Arkansas entitled `An act extending the western boundary of the state of Arkansas over a strip of the Choctaw Nation between the Arkansas line and Poteau river adjacent to Ft. Smith, approved February 16, 1905.' The court doth find that said offense was committed and said strip is within the jurisdiction of said court. Therefore the plea of the defendant to the jurisdiction of the court is overruled by the court, and the court, being well and sufficiently advised as to all the matters of law and facts therein, doth find the said defendant guilty, and doth assess a fine of $5." Following which is a judgment in ordinary form for the fine and costs, and that the defendant be committed to the county jail until the above fine and costs are paid according to law. A commitment to the jailer of Sebastian county was issued, and Clint Thompson was imprisoned in the jail of said county. On the same day of his conviction Thompson filed a petition for habeas corpus before the Honorable J. V. Bourland, chancellor, in which he set forth that he was illegally restrained of his liberty by the jailer of Sebastian county, under said judgment and commitment, which judgment he claimed was void on the ground that the justice of Upper township was without jurisdiction over the place where the offense was alleged to have been committed; said place not being a part of the state of Arkansas. The allegation being that the act of the General Assembly of Arkansas referred to in the judgment was unconstitutional, and that the act of Congress referred to had been repealed. This petition was demurred to by the attorney for the jailer, upon the ground that the court was without jurisdiction to try the matter presented, and that the petition did not state facts sufficient to constitute a cause of action. The cause came on to be heard before the chancellor upon the petition and demurrer and an agreed statement of facts, which was as follows: "It is agreed by counsel in the above case that the acts for which petitioner was convicted was committed on a strip of land adjacent to the city of Ft. Smith, Ark., and lying between the original western line of said state and the Arkansas and Poteau rivers, and is included and embraced in the lands described in the act of Congress of February 11, 1905, and the act of the General Assembly of Arkansas of February 16, 1905. Tom W. Neal and T. S. Osborne, Attorneys for Petitioner. W. H. Rector, Asst. Prosecuting Atty. for 12th District of Ark." The chancellor denied the writ, and Thompson seeks to reverse his action by certiorari.

T. S. Osborne and Tom W. Neal, for petitioner. Wm. F. Kirby and W. H. Rector, for appellee.

HILL, C. J. (after stating the facts as above).

Petitioner seeks through a writ of certiorari to reverse a decision of a chancellor denying him the writ of habeas corpus. A judgment of a justice of the peace of Upper township of Sebastian county was sought to be declared void upon the ground that the justice had found the petitioner guilty of a crime committed without his jurisdiction. It appears, from the finding of fact inserted by the justice in his judgment and in the agreed statement of fact made by counsel on the trial before the chancellor, that the jurisdiction of the justice over the place where the crime was committed depended upon the constitutionality of an act of the General Assembly of February 16, 1905, entitled "An act extending the western boundary of the state of Arkansas over a strip of the Choctaw Nation between Arkansas line and Poteau river adjacent to Ft. Smith." Acts 1905, p. 124. The contention being that said act is in conflict with article 1 of the Constitution of 1874, which reads as follows: "We do declare and establish, ratify and confirm, the following as the permanent boundaries of the state of Arkansas" — therein describing the boundaries. Before the court should decide this question, there should be a record here that properly calls for a decision of it. It has been earnestly insisted that the judgment upon its face shows that the justice was without jurisdiction, and that the judgment, being void upon its face, can be attacked by habeas corpus. This contention is bottomed upon the theory that the act of the General Assembly and the act of Congress are without effect. Does this record call for a decision of this question?

Section 6213 of Kirby's Digest provides: "Upon trials of questions of fact by the court, it shall state in writing the conclusions of fact found separately from the conclusions of law." When the circuit court tries facts without a jury, it has frequently been decided that its findings of fact made pursuant to this statute and recited in the judgment present questions of law for review here without the aid of a bill of exceptions....