Hayes v. Pilger

• Decision Date: 09 July 1923
• Docket Number: 23087
• Citation: 194 N.W. 727,110 Neb. 609
• Parties: ROBERT HAYES ET AL., APPELLEES, v. CHARLES PILGER ET AL., APPELLANTS
• Court: Nebraska Supreme Court

194 N.W. 727

110 Neb. 609

ROBERT HAYES ET AL., APPELLEES, v. CHARLES PILGER ET AL., APPELLANTS

No. 23087

Supreme Court of Nebraska

July 9, 1923

APPEAL from the district court for Madison county: WILLIAM V. ALLEN JUDGE. Affirmed.

AFFIRMED.

James C. Kinsler and Don W. Stewart, for appellants.

Webb Rice, contra.

Heard before MORRISSEY, C. J., LETTON and ALDRICH, JJ., BLACKLEDGE and COLBY, District Judges.

OPINION

LETTON, J.

Petition for a writ of habeas corpus; the petitioners were discharged respondents appeal.

The proceeding was brought against Charles Pilger, chief of police of Norfolk, Nebraska, who has charge of the city jail, and three other defendants. It is alleged, in substance, that the latter three defendants "claimed to be police officers of the United States," commonly known as "booze hounds;" that the petitioners were arrested in Tilden, Antelope county, Nebraska, on July 5, and placed in the custody of Pilger at the jail in Norfolk, Madison county, on July 6; that no charge of any kind has been filed, or is pending against them in any court, or before any magistrate, or federal commissioner; that no warrant has been issued, and that they are detained at the caprice of the defendant; that they have been denied any right to consult an attorney, or to give bail; and that no charges will be filed until a representative of the federal district attorney arrives upon July 8; and that the imprisonment is unlawful.

The return alleges that the defendants, except defendant Pilger, are "general prohibition agents of the United States of America;" that the applicants were arrested without a warrant, and that complaints were filed about 2:30 p. m. on July 7, and warrants issued.

The court found: "That the petitioners Brittell and Wendt were arrested and taken into custody by the defendants McMillan, Whitney and Gibson in the town of Tilden, Nebraska, at about the hour of 10:30 o'clock p. m. on the 5th day of July, 1922; that the petitioners Hayes and Casey were arrested and taken into custody by the said defendants at about the hour of 1:30 o'clock a. m. on the 6th day of July, 1922; and that said arrests were made by said defendants without any warrant or other process, and without any complaint having been filed before any magistrate or in any court, and without any charge or purported charge having been filed with any officer; but the said defendants claim that the petitioners Hayes and Casey were taken in the act of violating the national prohibition laws, and that the petitioners Wendt and Brittell were claimed by defendants to have violated the national prohibition laws.

"The court further finds that following said arrests the said defendants transported said petitioners to the city of Norfolk at about the hour of 4:00 o'clock a. m. on the 6th day of July, 1922, and placed said petitioners in the city jail of the city of Norfolk, and in the custody of Charles Pilger, who is chief of police and ex officio jailer of said city.

"The court further finds that said petitioners were imprisoned in said jail all of the 6th day of July, 1922, without any charge having been filed before any magistrate, and were further imprisoned without any charge having been filed against them until about the hour of 2:30 o'clock p. m on the 7th day of July, 1922, and that no warrant or other process was served on the said petitioners during any of the times herein stated.

"The court finds that the imprisonment and detention of said petitioners for said time without process or any charge filed against them was and is wrong and unlawful and that said petitioners and each of them are entitled to be discharged upon their...