Hovey v. Sheffner

• Decision Date: 20 January 1908
• Citation: 16 Wyo. 254,93 P. 305
• Parties: HOVEY v. SHEFFNER, SHERIFF
• Court: Wyoming Supreme Court

93 P. 305

16 Wyo. 254

HOVEY v. SHEFFNER, SHERIFF

Supreme Court of Wyoming

January 20, 1908

ORIGINAL proceeding on habeas corpus.

The facts are stated in the opinion.

Fred D Hammond, for the plaintiff.

At common law Sunday was dies non juridicus. (20 Ency. Pl. & Pr., 1190, and cases cited.) The adoption of the common law by statute (R. S. 1899, Sec. 2695) specifically excluded the common law and statutes of England, after July 4, 1776, that day being the point of time at which the continuous stream of the common law became divided, and that portion which had been adopted in America flowed on by itself, no longer subject to changes in England. (Johnson v. Coal Co (Utah), 76 P. 1089.) At common law courts could not perform judicial acts on Sunday, and in those states where that law prevails unrepealed by statute, the judicial acts of a court performed on Sunday are void. (Welden v Colquist, 62 Ga. 449; Chapman v. State, 5 Blackf., 111; Taylor v. Renger, 3 Wash. Ter., 539.) Although ministerial acts on Sunday are held valid. (Hadley v. Musselman, 104 Ind. 459; Carey v. Silcox, 5 Ind. 370; Kiger v. Coats, 18 Ind. 153.)

The convening of court on Sunday and the discharge of a jury in a criminal case, because they cannot agree, is void and operates as an acquittal of the defendant. (Ex parte Tice, 32 Ore. 179 (49 P. 1038); State v. McGimcey, 80 N. C., 377 (30 Am., 90.) The discharge of a jury because of a failure to agree is a judicial act. (R. R. Co. v. U.S. 99 U.S. 700; Smith v. Strouther, 68 Cal. 194; In re Cooper, 22 N.Y. 67; 4 Words & Phrases, 3848.) R. S. Wyoming, 1899, Sec. 3612, providing that courts shall be always open, can, by no line of reasoning, be held to make a judicial day of Sunday, the evident intention of the legislature being to empower courts to do official business during vacations of the court, but upon legal days. Statutes in derogation of the common law should be strictly construed. (Brown v. Barry, 3 U.S. 365.) It will be presumed that the legislature in enacting a statute did not intend to make any alteration in the common law, other than that specifically stated. (Cadwaller v. Harris, 76 Ill. 370; Hooper v. Baltimore, 12 Md. 464.) When the common law and statute differ, the common law gives way, but only when the statute is couched in negative terms, or where its matter is clearly so repugnant that it implies a negative. (State v. Norton, 23 N.J.L. 33.) The Christian religion is part of the common law. (Bloom v. Richards, 2 Ohio St. 387; Anderson v. N. Y., 6 N. Y. Sup., 156.) And courts should never impute to the legislature a purpose of action against religion. (Holy Trinity Church v. U.S. 143 U.S. 457.) Where a jury duly sworn is discharged without the prisoner's consent, before verdict, he is exonerated from further answering the indictment unless the record shows some legal necessity for such discharge. (Hines v. State, 24 Ohio St. 134; Allen v. State (Fla.), 41 So. 593; Adams v. State, 99 Ind. 244; Tomasson v. State (Tenn.), 79 S.W. 802; Obrien v. Com., 72 Ky. 333; State v. Costello (Wash.), 69 P. 1099.)

W. E. Mullen, Attorney General, for defendant.

It may be admitted that at common law Sunday was dies non juridicus. The principle, which was a part of the common law of England adopted by the colonies, is traceable to certain canons of the church. It seems, however, that prior to the fifth century the Christian courts were open to litigants and judicial business was transacted on Sunday. (Parsons v. Lindsay, 3 L. R. A., 658, and note; Hansworth v. Sullivan, 6 Mont., 203.) While the common law is expressly adopted as the rule of decision in this state the statute is qualified in terms and does not seem to require an express statutory repeal of common law principles. If inapplicable or inconsistent with state laws, the common law rule does not apply. (R. S. 1899, Sec. 2695.) The question is governed by statutory provisions, however, in nearly all of the states, and the decisions of courts in disposing of the question follow the statutes of the jurisdiction where the respective cases are decided. Where the statutes are silent, the common law rule is held to prevail, and judicial acts of courts performed on Sunday are held to be void. A distinction is made, however, between what are classed as ministerial acts, and acts of judicial character. The Oregon case cited by counsel for plaintiff follows a statute which prohibits the transaction of judicial business by courts on Sunday, except to give instructions to the jury deliberating on their verdict; to receive the verdict of a jury, or to exercise the powers of a magistrate in a criminal action. The case cited in 80 N. C., 377, would not seem to support the contention of plaintiff in as much as that case is cited in a later case in the same state (Taylor v. Ervin, 119 N. C., 274), where it is held that under the statute of North Carolina, requiring a judgment to be entered at once on the verdict of a jury, there being no inhibition of a verdict rendered on Sunday, either at common law or by statute, a judgment entered on Sunday is valid. The court also holds that in special cases, ex necessitate, a court may sit on Sunday. (State v. Ricketts, 74 N. C., 193.) It is probable that the question here will turn upon the interpretation of Sec. 3612, R. S. Wyo. 1899, which provides that the court shall be open at all times for certain business. The proposition advanced by counsel that courts should never impute to the legislature a purpose against religion, assumes that the discharge of a jury on Sunday is in the nature of an act against religion. We do not desire to enter upon a discussion of this phase of the question, further than to state that the cases which have discussed it have, by what appears to be the better and sounder course of reasoning, established the principle that to discharge a jury which has either arrived at a verdict, or which cannot in all probability arrive at a verdict, is vastly more consistent with sane principles of religion, than to require a jury under such circumstances to remain confined during the entire twenty-four hours of the Sabbath day. (State v. McGimsey, supra; Taylor v. Ervin, supra; State v. Ricketts, 74 N. C., 193.)

The following cases show the conclusions in states where the common law as to Sunday has been confirmed or qualified in various particulars by statute: People v. Warden, 76 N.Y.S. 728; State v. Straub (Wash.), 47 P. 227; State v. Rover, 13 Nev. 23; McCorkle v. State, 14 Ind. 39; Reid v. State, 53 Ala. 402; People v. Sato, 65 Cal. 621; Blaney v. State, 74 Md. 157; Green v. Canfield, 38 Neb. 169; Pearson v. Alsalfa, 44 F. 358.

The phrase, "at all times," in our statute requiring district courts to be open necessarily includes Sunday. (Adams v. Dohrman, 63 Cal. 417; Anderson v. Matthews, 8 Wyo. 307; Jones v. Bowman, 10 Wyo. 52.)

A person is not in legal jeopardy until put upon trial before a court of competent jurisdiction, upon an information or indictment sufficient in form and substance to sustain a conviction, and a jury has been regularly charged with his deliverance. (Cooley Const., line 299, and note (6th Ed.) The court cannot pass upon the question of former jeopardy on habeas corpus. It is a question to be tried by a plea in bar, from the decision of which an appeal will lie. (Steiner v. Nerton, 6 Wash. 23; In re Maughn, 6 Utah, 167; In re Barton, id., 264; Church on Hab. Corp., 253, and note.) The attack on a judgment by habeas corpus being collateral, the judgment cannot be impeached for any error or irregularity not affecting the power of the court to act. (Younger v. Hehn, 12 Wyo. 289.)

POTTER, CHIEF JUSTICE. BEARD, J., and SCOTT, J., concur.

OPINION

POTTER, CHIEF JUSTICE.

A writ of habeas corpus was issued in this case by order of the chief justice and made returnable before the court, upon the petition of Fay Hovey alleging that she is unlawfully imprisoned and restrained of her liberty at the town of Casper, in Natrona County, in this state, by Jesse A. Sheffner, sheriff of said county, under an order and commitment of the district court sitting in and for said county made and entered November 21, 1907, which order, by reason of certain facts set out in the petition, presently to be stated, is alleged to be insufficient to justify the imprisonment complained of. The sheriff's answer and return admits the imprisonment and restraint of plaintiff, but denies its alleged illegality, and sets out a certified copy of the order aforesaid as his authority in the premises.

It appears from the pleadings that on the 7th day of November 1907, one of the regular days of the July term of said district court, the plaintiff was placed on trial, after a plea of not guilty, upon an information filed by the prosecuting attorney of Natrona County charging her with the statutory offense of enticing a female of good repute and chastity into a house of ill fame for the purpose of prostitution; that a jury was impaneled and sworn upon said trial, to whom, after the introduction of evidence, arguments of counsel, and instructions of the court, the cause was submitted on Saturday, November 9, 1907, and they thereupon retired to deliberate upon their verdict. That on the following day, Sunday, November 10, 1907, at the hour of ten o'clock in the forenoon, the presiding judge of said court convened the same in session, the clerk and sheriff being present, as also the plaintiff here, who was defendant in said cause, and the attorneys for the State; whereupon the jury aforesaid was called into the presence of the court, and upon inquiry by the court reported that they were unable to agree, and that there was no probability of their agreeing or rendering a verdict, and asked to be discharged from a...