Hawk v. Olson
| Decision Date | 03 November 1944 |
| Docket Number | 31841. |
| Citation | 16 N.W.2d 181,145 Neb. 306 |
| Parties | HAWK v. OLSON, Warden. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. The fact that a defendant in an information is in prison serving a sentence for another crime, gives him no immunity from prosecution.
2. In an application for a writ of habeas corpus if the applicant or petitioner sets forth facts which, if true would make out a case which would entitle him to his discharge, then the writ is a matter of right and the petitioner should be produced and a hearing held thereon to determine the question of fact presented. But, if he shows by the facts which he sets forth in his application for the writ that he is not entitled to relief, then the writ should be denied.
3. The guilt or innocence of one accused of crime, or convicted of a crime, is not justiciable in habeas corpus.
4. A writ of habeas corpus is not a writ for the correction of errors and will not be allowed to be used for that purpose.
5. Habeas corpus is not recognized as a remedy to review a judgment. It cannot take the place of a writ of error.
6. Every person accused of crime should be afforded reasonable opportunity to marshal his witnesses and prepare for trial but mere procrastination--delay for delay's sake--should not be tolerated.
Henry Hawk, pro se.
Walter R. Johnson, Atty. Gen., H. Emerson Kokjer, Deputy Atty. Gen., and John H. Comstock and Rush C. Clarke, Asst. Attys. Gen., for appellee.
Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, and WENKE, JJ.
This habeas corpus proceeding was instituted in the district court for Lancaster county by the petitioner, Henry Hawk, against Neil Olson, warden of the Nebraska state penitentiary, as respondent, to obtain the petitioner's release. From an order denying the writ the petitioner has appealed to this court.
The petitioner's petition dicloses that a complaint was filed against him in the municipal court of the city of Omaha containing two counts charging him with first degree murder. Preliminary hearing thereon was had on February 11, 1936, and on the same day he was bound over to the district court. Information to the same effect was then filed in the district court on February 17, 1936. On March 16, 1936, after being arraigned and pleading not guilty, the defendant was tried to a jury. By the verdict of the jury, rendered on March 18, 1936, he was found guilty of murder in the first degree, which verdict fixed the penalty at imprisonment in the penitentiary during life. On March 19, 1936, after motion for new trial had been overruled, the court, as provided in the verdict, sentenced the petitioner to the Nebraska state penitentiary for the period of his natural life. He is confined and is being held in said institution pursuant thereto.
This court, in Hawk v. O'Grady, 137 Neb. 639, 290 N.W. 911, has determined the validity of the form of the judgment entered by the trial court.
Petitioner complains that at the time he was tried he was a federal prisoner incarcerated in the federal penitentiary at Leavenworth, Kansas, and therefore outside of the jurisdiction of the state. Further, that when he had completed his term in the federal prison he was turned over to the Nebraska authorities and confined in the state penitentiary without further order. These contentions are without merit.
The petition states that he was brought to Omaha for trial by the federal authorities and then returned by them to the federal prison; and that when his term in the federal penitentiary expired the federal authorities turned him over to the state authorities. As stated in Ponzi v. Fessenden, 258 U.S. 254, 42 S.Ct. 309, 312, 66 L.Ed. 607, 22 A.L.R. 879: '* * * the fact that a defendant in an indictment is in prison serving a sentence for another crime gives him no immunity from the second prosecution. * * * 'The penitentiary is not a place of sanctuary; and an incarcerated convict ought not to enjoy an immunity from trial merely because he is undergoing punishment on some earlier judgment of guilt.'' As stated in Rigor v. State, 61 A. 631 (101 Md. 465, 4 Ann.Cas. 719): 'That accused is serving a sentence under a prior conviction of a distinct crime is no ground for postponing his trial until the expiration of such sentence.' See, also, Cato v. Smith, 9 Cir., 104 F.2d 885; Kelley v. Oregon, 273 U.S. 589, 47 S.Ct. 504, 71 L.Ed. 790. And in Ponzi v. Fessenden, supra :
Many of the petitioner's grounds for release are pleaded in the form of conclusions. The petitioner must set forth the facts from which it is made to appear he will be entitled to discharge. See In re Application of Tail (Tail v. Olson), 145 Neb. 268, 16 N.W.2d 161.
In re Application of Tail (Tail v. Olson), supra, 16 N.W.2d 164.
The petitioner questions the sufficiency of the evidence to sustain his conviction and says he is innocent. "The guilt or innocence of one accused of crime, or convicted of a crime, is not justiciable in habeas corpus.' Smith v. Amrine, 156 Kan. 486, 134 P.2d 400, 402.' In re Application of Tail (Tail v. Olson), supra, 16 N.W.2d 163. See, also, Carlsen v. State, 129 Neb. 84, 261 N.W. 339.
The petitioner sets forth parts of the evidence taken at the time of trial and attempts to show that the same are contradictory, conflicting, impeached, incompetent, and uncorroborated; that the state was permitted to impeach its own witnesses; that the court overruled his motion for continuance made after he had been arraigned and pleaded not guilty but before trial; and that there was error in the instructions given by the court. In re Application of Maher (North v. Dorrance), 144 Neb. 484, 13 N.W.2d 653. State ex rel. Gossett v. O'Grady, 137 Neb. 824, 291 N.W. 497, 500. ...
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