Hawk v. Olson, 31841.

Citation146 Neb. 875,22 N.W.2d 136
Decision Date08 March 1946
Docket NumberNo. 31841.,31841.
PartiesHAWK v. OLSON.
CourtSupreme Court of Nebraska

146 Neb. 875
22 N.W.2d 136

HAWK
v.
OLSON.

No. 31841.

Supreme Court of Nebraska.

March 8, 1946.


Appeal from District Court, Lancaster County; Wilson, Judge

Proceeding in the matter of the application of Henry Hawk for writ of habeas corpus against Neil Olson, warden of the Nebraska State Penitentiary at Lincoln, Lancaster County, Nebraska, to secure petitioner's release from state penitentiary. From a judgment denying the writ, the petitioner appealed. On petitioner's motion that judgment of United States Supreme Court, which was entered following a grant of certiorari, be enforced and that Supreme Court issue a mandate to district court to issue a writ of habeas corpus directing that petitioner be produced before it for hearing upon his allegations in the petition.

Motion denied.

[22 N.W.2d 137]


Syllabus by the Court.

1. It is for the Supreme Court of this state to decide what issues are justiciable in an application for a writ of habeas corpus made to the courts of this state.

2. The Supreme Court of this state has the undoubted right to decide upon its own jurisdiction and the jurisdiction of the courts of this state to which its appellate power extends.

3. To release a person from a sentence of imprisonment by habeas corpus, it must appear that the sentence was absolutely void.

4. Habeas corpus will not lie to discharge a person from a sentence of penal servitude where the court imposing the sentence had jurisdiction of the offense, had jurisdiction of the person of the defendant, and the sentence was within the power of the court to impose.

5. Habeas corpus cannot be used as a substitute for a writ of error.

6. Habeas corpus is a collateral and not a direct proceeding when regarded as a means of attack upon a judgment sentencing a defendant.

7. The regularity of the proceedings leading up to a sentence in a criminal case cannot be inquired into on an application for a writ of habeas corpus, that matter being assailable only in a direct proceeding.

8. When the judgment is regular upon its face and was given in an action where the court had jurisdiction of the offense and of the person of the defendant, extrinsic evidence is not admissible to show its invalidity.

9. A constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.

10. The existence of a right is one matter, the availability of a particular remedy in which that right may be asserted is distinctly a separate matter.

11. Where the Supreme Court of the United States considers and determines the existence of a right and reverses and remands a cause for further proceedings not inconsistent with its opinion, the Supreme Court of this state is not foreclosed from determining, and has the right to determine, the availability of the particular remedy sought to be used to assert the right.


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., PAINE, CARTER, MESSMORE, CHAPPELL and WENKE, JJ.

[22 N.W.2d 138]



SIMMONS, Chief Justice.

In Hawk v. Olson, 145 Neb. 306, 16 N.W.2d 181, we affirmed a judgment of the district court for Lancaster County denying petitioner a writ of habeas corpus. The Supreme Court of the United States granted certiorari, because a substantial federal question as to restraint without due process of law under the Fourteenth Amendment seemed to be presented. 324 U.S. 839, 65 S.Ct. 1021. On the matter coming before that court, it found that petitioner was entitled to a hearing on the claimed violation of the due process clause, and reversed and remanded the cause to us for further proceedings not inconsistent with the opinion of that court. Hawk v. Olson, 66 S.Ct. 116, 118, 90 L.Ed. 61. Petitioner now moves that the judgment of the Supreme Court of the United States be enforced and that we issue a mandate to the district court for Lancaster County to issue a writ of habeas corpus directing that the petitioner be produced before it for hearing upon his allegations in his petition for the writ. We deny petitioner's motion.

Preliminary to a discussion of the matter now before us, the Supreme Court of the United States disposed of a number of contentions which need not be recited now.

The Supreme Court of the United States stated petitioner's contention thus: ‘* * * his conviction violates the Fourteenth Amendment because of denial at his trial of an opportunity to examine the charge, subpoena witnesses, consult counsel and prepare a defense.’ The court said that denial of effective assistance of counsel does violate due process; that habeas corpus in the federal courts was a proper procedure by one convicted of a criminal offense to safeguard an infringement of constitutional rights, even though the events which were alleged to infringe did not appear on the face of the record of his conviction; that the Fourteenth Amendment is violated when a defendant is forced by a state to trial in such a way as to deprive him of the effective assistance of counsel; and that when a state does not provide corrective judicial process, the federal courts will entertain habeas corpus to redress the violation of...

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