Hollibaugh and Bunten v. Hehn

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtPOTTER, JUSTICE.
Citation13 Wyo. 269,79 P. 1044
Decision Date20 March 1905
PartiesHOLLIBAUGH AND BUNTEN v. HEHN, AS WARDEN OF STATE PENITENTIARY

79 P. 1044

13 Wyo. 269

HOLLIBAUGH AND BUNTEN
v.

HEHN, AS WARDEN OF STATE PENITENTIARY

Supreme Court of Wyoming

March 20, 1905


ORIGINAL proceeding in habeas corpus prosecuted on behalf of Charles E. Hollibaugh and Eric Bunten to determine the legality of their imprisonment in the state penitentiary. The facts are stated in the opinion.

Writ denied.

Allen G. Fisher, for plaintiffs, cited Wartner v. State, 102 Ind. 51; Ex parte Carr, 22 Neb. 540; State v. Stephens, 71 Mo. 535; 6 Colo. 559; 7 id., 384; id., 502.

POTTER, JUSTICE. BEARD, J., concurs.

OPINION [79 P. 1045]

[13 Wyo. 272] POTTER, JUSTICE.

Charles E. Hollibaugh and Eric Bunten have jointly filed a petition in this court praying for the writ of habeas corpus and their discharge from the state penitentiary, wherein it is alleged they are unlawfully restrained of their liberty. The matter has been heard upon the petition, and the question is whether upon the facts alleged a prima facie case is made for the issuance of the writ.

The petitioners are confined upon a sentence of the District Court in and for Johnson County following a plea of guilty entered by each of them of the crime of murder in the second degree. It is alleged that on or about March 1, 1901, they were arrested by the sheriff of Johnson County, at their place of residence in said county, without a warrant or other process and thereupon were imprisoned in the county jail of that county, and, during that imprisonment and in the same month, they were brought before the District Court to answer to an information charging them jointly with the crime of murder in the first degree, for the killing of one Andrew S. Brown; and that without the benefit of counsel, they pleaded guilty to murder in the second degree. It is alleged that they were induced to enter said plea by reason of representations made to them by one who had been employed for that purpose by the sheriff and prosecuting attorney that there was great danger of their being taken from the jail by a mob and lynched, and that if they would plead guilty the officers aforesaid would sign a petition for their pardon after they had served two years in the penitentiary; and that the court made no inquiry of them as to whether their plea was voluntary or not. It is alleged further that they were not given a preliminary examination, and that they did not waive the same; that they were not charged with the crime [13 Wyo. 273] upon oath, and that the information charging them with the crime aforesaid was not based upon any affidavit or sworn complaint, nor any writ or order for their arrest; and that the term of court at which the proceedings were had was held at a time not authorized by law. While the petitioners allege that they are not in fact guilty of any degree of the crime charged in the information filed against them, they do not deny that they killed the deceased on the contrary, that seems to be admitted, and there is a rather vague attempt to allege that the killing was done in self-defense.

From the record which accompanies the petition, it appears that the information was filed March 18, 1901, charging that the petitioners did on January 22, 1901, "unlawfully, feloniously, purposely and with premeditated malice kill and murder one Andrew S. Brown." That information was verified by the prosecuting attorney on information and belief. The term of court convened March 25, 1901, and on that day the defendants (petitioners here) were brought into court and counsel was assigned to defend them, and thereupon they were arraigned and each pleaded guilty to the crime of murder in the second degree, and they were remanded to the custody of the sheriff to await sentence. The sentence was imposed March 27, 1901, and we observe no imperfection in the record thereof, nor is any suggested.

It is not competent in this proceeding to assail the judgment under which the petitioners were imprisoned for any irregularity, error or defect not affecting the jurisdiction of the court to render the judgment. (Kingen v. Kelley, 3 Wyo. 566, 28 P. 36; Miskimins v. Shaver, 8 Wyo. 392, 58 P. 411; Fisher v. McDaniel, 9 Wyo. 457, 64 P. 1056.)

The fact that the arrest of petitioners was made without a warrant is not a jurisdictional defect, if any, in view of their subsequent presence in court and arraignment without objection on that ground. That the court then had jurisdiction of their persons cannot be doubted. If it [13 Wyo. 274] should be conceded that the arrest was illegal, the objection, if at any time a valid one, was waived. As was said in State v. Fitzgerald, 51 Minn. 534, 53 N.W. 799, "When a valid indictment is found, or where no indictment is necessary, [79 P. 1046] a valid complaint is filed, the court has jurisdiction to cause the defendant to be brought before it to answer to the indictment or complaint; and when he is actually before it, and called upon to plead, if he has any objection to make to the manner in which he was brought before it, he ought to make the objection then." In Kingen v. Kelley, 3 Wyo. 566, 28 P. 36, Mr. Justice Conaway said in the course of the opinion: "By no stretch of the imagination can it be conceived that the arrest of a defendant in a criminal action without a legal warrant, or his abduction by force and against his will from a neighboring state, could affect the general jurisdiction of the District Court to try cases of grand larceny, or to pronounce judgment on convictions therefor, imposing the legal penalties," and though it was held in that case, which was a habeas corpus proceeding, that the forcible arrest of petitioner in Nebraska without a warrant did not entitle him to be discharged, on the broad ground that "no person held to answer a criminal charge, either before or after conviction, has any right to invoke the principles of comity to shield him from trial when charged with crime, or from punishment when convicted," the learned judge said: "It may well be doubted whether the failure to interpose this objection to the jurisdiction of the person of petitioner upon arraignment and before pleading not guilty, and entering upon the trial, was not a waiver of the objection." In People ex rel. Edwards v. Warden, 37 Misc. 635, 76 N.Y.S. 286, the court say: "The general rule is that it is no defense to a criminal prosecution that the defendant was illegally or forcibly brought within the jurisdiction of the court." To the same effect are the following: Commonwealth v. Conlin, 184 Mass. 195, 68 N.E. 207; Ledgerwood v. State, 134 Ind. 81, 33 N.E. 631; State v. Dibble, 59 Conn. 168, 22 A. 155; State v. Brewster, 7 Vt. 118; Dow's case, 18 Pa. St. 37. [13 Wyo. 275] (See also State v. Sureties of Krohne, 4 Wyo. 347, 34 P. 3; State v. Melvern, 32 Wash. 7, 72 P. 489.) In the Washington case cited the defendant asked a reversal of a judgment of conviction of the crime of murder in the second degree on the ground that he had been arrested without warrant. But as he was in fact in the custody of an officer, was present in court on the day of his arraignment, pleaded not guilty, and was in court throughout the trial, it was held that there was no doubt of the court's jurisdiction; and the court say: "The mere fact that he was arrested in the first instance, by a person not having a lawful warrant therefor, and detained by him, constitutes no ground for the reversal of the judgment."

The statute expressly authorizes a defendant charged with crime to waive a preliminary examination; and it might reasonably be held that such a waiver results where a defendant without making the objection that such examination has not been had suffers himself to be arraigned upon the information and pleads thereto either guilty or not guilty. (12 Cyc., 353; Clark's Cr. Proc., p. 82.) It is held in Michigan that the plea of not guilty amounts to a waiver of such objection. (Washburn v. People, 10 Mich. 372; People v. Jones, 24 Mich. 215; People v. Williams, 93 Mich. 623, 53 N.W. 779.) But there is nothing in this case to show that the petitioners were charged with the crime until March 1, 1901, which was within thirty days immediately preceding the first day of the next regular term of the District Court in the county, viz: March 25, 1901. The statute expressly authorized an information to be filed without a previous preliminary examination "whenever an offense shall be charged against any person at any time within thirty days immediately preceding the first day of a regular term of court of the county wherein such offense is charged to have been committed." (R. S. 1899, Sec. 5273.) Assuming, therefore, that the term was authorized by law, which is a question yet to be considered, a preliminary examination was not required. It was held by this court in State v. Sureties of Krohne, 4 Wyo. 347, 34 P. 3, [13 Wyo. 276] that a former statute expressly authorizing an information to be filed without a preliminary examination "whenever the county and prosecuting attorney is satisfied that a crime or offense has been committed in his county," was not unconstitutional or void, although it was deemed to be harsh and to lodge a dangerous power in the hands of the...

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26 practice notes
  • State v. Hofer, No. 46993.
    • United States
    • United States State Supreme Court of Iowa
    • July 29, 1947
    ...N.W. 692;Ford v. United States, 273 U.S. 593, 606, 47 S.Ct. 531, 535, 71 L.Ed. 793, 799, 800, and authorities cited; Hollibaugh v. Hehn, 13 Wyo. 269, 79 P. 1044, 1045, 1046. See also State v. Ray, 50 Iowa 520;State v. Kinney, 41 Iowa 424. We pointed out in Hottle v. District Court, 233 Iowa......
  • State ex rel. Hopkinson v. District Court, Teton County, Nos. 84-144
    • United States
    • United States State Supreme Court of Wyoming
    • February 28, 1985
    ...A court's judgment cannot be impeached by a writ of habeas corpus except for jurisdictional reasons. Hollibaugh and Bunten v. Hehn, 13 Wyo. 269, 79 P. 1044 (1905). This is the office of an appeal here thrice taken and decided against appellant. Furthermore, there is no provision that we can......
  • Davila v. State, No. 90-226
    • United States
    • United States State Supreme Court of Wyoming
    • April 23, 1992
    ...300 P.2d 551 (1956); State v. Vines, 49 Wyo. 212, 54 P.2d 826 (1936); State v. Tobin, 31 Wyo. 355, 226 P. 681 (1924); Hollibaugh v. Hehn, 13 Wyo. 269, 79 P. 1044 (1905). The only case in Wyoming history, State v. Boulter, 5 Wyo. 236, 39 P. 883 (1895), was determinatively established and sin......
  • State v. Hall, 985
    • United States
    • United States State Supreme Court of Wyoming
    • January 6, 1920
    ...in the title and in the body of the act to the section to be amended is to be regarded as erroneous." (Hollibaugh & Bunton v. Hehn, 13 Wyo. 269, 282; 79 P. 1044, 1049). And it was held, in Commissioners v. Stone, 7 Wyo. 280, 51 P. 605, that in the case of amendments to an unauthorized code,......
  • Request a trial to view additional results
26 cases
  • State v. Hofer, No. 46993.
    • United States
    • United States State Supreme Court of Iowa
    • July 29, 1947
    ...N.W. 692;Ford v. United States, 273 U.S. 593, 606, 47 S.Ct. 531, 535, 71 L.Ed. 793, 799, 800, and authorities cited; Hollibaugh v. Hehn, 13 Wyo. 269, 79 P. 1044, 1045, 1046. See also State v. Ray, 50 Iowa 520;State v. Kinney, 41 Iowa 424. We pointed out in Hottle v. District Court, 233 Iowa......
  • State ex rel. Hopkinson v. District Court, Teton County, Nos. 84-144
    • United States
    • United States State Supreme Court of Wyoming
    • February 28, 1985
    ...A court's judgment cannot be impeached by a writ of habeas corpus except for jurisdictional reasons. Hollibaugh and Bunten v. Hehn, 13 Wyo. 269, 79 P. 1044 (1905). This is the office of an appeal here thrice taken and decided against appellant. Furthermore, there is no provision that we can......
  • Davila v. State, No. 90-226
    • United States
    • United States State Supreme Court of Wyoming
    • April 23, 1992
    ...300 P.2d 551 (1956); State v. Vines, 49 Wyo. 212, 54 P.2d 826 (1936); State v. Tobin, 31 Wyo. 355, 226 P. 681 (1924); Hollibaugh v. Hehn, 13 Wyo. 269, 79 P. 1044 (1905). The only case in Wyoming history, State v. Boulter, 5 Wyo. 236, 39 P. 883 (1895), was determinatively established and sin......
  • State v. Hall, 985
    • United States
    • United States State Supreme Court of Wyoming
    • January 6, 1920
    ...in the title and in the body of the act to the section to be amended is to be regarded as erroneous." (Hollibaugh & Bunton v. Hehn, 13 Wyo. 269, 282; 79 P. 1044, 1049). And it was held, in Commissioners v. Stone, 7 Wyo. 280, 51 P. 605, that in the case of amendments to an unauthorized code,......
  • Request a trial to view additional results

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