In re Application of Baugh

• Decision Date: 03 May 1917
• Parties: In re Application of W. H. BAUGH, for Writ of Habeas Corpus
• Court: Idaho Supreme Court

164 P. 529

30 Idaho 387

In re Application of W. H. BAUGH, for Writ of Habeas Corpus

Supreme Court of Idaho

May 3, 1917

WRIT OF HABEAS CORPUS-PRELIMINARY EXAMINATION-SUFFICIENCY OF EVIDENCE-INTOXICATING LIQUOR-POSSESSION.

1. Under the provisions of sec. 8354, Rev. Codes, upon petition for a writ of habeas corpus this court may examine the evidence upon which the order of commitment was based to determine whether or not there was probable cause to believe first, that the crime charged has been committed; second that the party held to answer has committed it.

2. Where the evidence taken at the preliminary hearing of one accused of having intoxicating liquor in his possession contrary to law, shows that the accused owned a drug-store and building in which the same was situated, and that during his temporary absence therefrom certain parties entered the store with a satchel containing intoxicating liquor, that the sheriff entered immediately afterward and confiscated and removed the liquor, and there is no evidence showing that it was brought upon the premises with the knowledge or consent of the accused, there was not probable cause for holding him to answer.

[As to release of prisoner under habeas corpus after commitment and before trial, see note in 100 Am.St. 29]

APPLICATION for Writ of Habeas Corpus. Writ issued and hearing had on return thereto. Petitioner discharged.

Petition granted.

Paul S. Haddock, for Plaintiff.

"This court cannot weigh the evidence on habeas corpus, but if it wholly fails to disclose a public offense for which the prisoner may be held, on preliminary examination, then the petitioner should be entitled to his discharge." ( In re Heigho, 18 Idaho 566, Ann. Cas. 1912A, 138, 110 P. 1029, 32 L. R. A., N. S., 877; In re Knudtson, 10 Idaho 676, 79 P. 641; Ex parte Sternes, 82 Cal. 245, 23 P. 38.)

The possession intended to be prohibited is a criminal one, or a possession with criminal intent. (People v. White, 34 Cal. 183; People v. Curran, 3 Cal. Unrep. 643, 31 P. 1116; Van Straaten v. People, 26 Colo. 184, 56 P. 905; People v. Hurley, 60 Cal. 74, 44 Am. Rep. 55.)

Harlan D. Heist and Frank T. Disney, for Defendant.

"It is not necessary for a committing magistrate to be convinced beyond a reasonable doubt that one accused of crime is guilty thereof, but if from all the evidence he has reasonable or probable cause to believe and does believe that the accused is guilty, it is his duty to hold him for trial." ( State v. Layman, 22 Idaho 387, 125 P. 1042; State v. Bond, 12 Idaho 424, 86 P. 43.)

The application for writ of habeas corpus should be denied where it is not shown that the committing magistrate has abused the discretion which the law vests in him. (In re Squires, 13 Idaho 624, 92 P. 754; In re Levy, 8 Idaho 53, 66 P. 806.)

"Intent is not an ingredient of the statutory offense of violation of the liquor laws of the land, and for this reason it cannot be set up as a defense that the accused did not authorize or direct the act that was done by the agent, had no personal knowledge of the act at the time, or was free from any intent to violate these laws." (2 Wharton's Criminal Law. sec. 1844, and cases cited; State v. Kittele, 110 N.C. 560, 28 Am. St. 698, 15 S.E. 103, 15 L. R. A., 694; State v. Gilmore, 80 Vt. 514, 13 Ann. Cas. 321, 68 A. 658, 16 L. R. A., N. S., 786; State v. Chastain, 19 Ore. 176, 23 P. 963; People v. Curtis, 129 Mich. 1, 95 Am. St. 404, 87 N.W. 1040; United States v. Stofello, 8 Ariz. 461, 76 P. 611.)

MORGAN, J. BUDGE, C. J., and Rice, J., concur.

OPINION

MORGAN, J.

W. H. Baugh, the petitioner herein, and A. M. Brickey, Jake Rolfson, Sam Adams and A. W. Gregor were arrested upon a charge of having intoxicating liquor in their possession, contrary to law, in Lincoln county. A preliminary examination was had before the probate judge of that county, sitting as a committing magistrate, which resulted in petitioner being held to answer to said charge in the district court. He gave bond for his appearance, was afterward surrendered to the sheriff by his bondsmen, and petitioned this court for and procured the issuance of a writ of habeas corpus, directed to that officer, commanding him to bring petitioner before the court that the cause of his detention might be inquired into. The sheriff's return to the writ shows that he holds petitioner in custody pursuant to the proceedings above described and by reason of his surrender by the sureties on his bond. The question presented here is: Does the evidence taken at the preliminary examination justify the action of the magistrate in holding petitioner to answer?

Sec. 7578, Rev. Codes, relating to preliminary examinations, provides: "If, after hearing the proofs, it appears either that no public offense has been committed or that there is not sufficient cause to believe the defendant guilty of a public offense, the magistrate must order the defendant to be discharged. . . ."

It is well established that, upon petition for a writ of habeas corpus, the court can go back of the order of commitment by a magistrate and inquire into the question of probable cause. Sec. 8354, Rev. Codes, referring to the writ of habeas corpus, provides: "If it appears on a return of the writ that the prisoner is in custody by virtue of process from any court of this state, or judge or officer thereof, such prisoner may be discharged in any of the following cases, subject to the restrictions of the last section: . . . 7. Where a party has been committed on a criminal charge without reasonable or probable cause." (See, also, In re Heigho, 18 Idaho 566, Ann. Cas. 1912A, 138, 110 P. 1029, 32 L. R. A., N. S., 877; In re Knudtson, 10 Idaho 676, 79 P. 641; Ex parte Sternes, 82 Cal. 245, 23 P. 38; In re Snell, 31 Minn. 110, 16 N.W. 692; Ex parte Beville, 6 Okla. Crim. 145, 117 P. 725; People v. Moss, 187 N.Y. 410, 10 Ann. Cas. 309, 80 N.E. 383, 11 L. R. A., N. S., 528.)

In habeas corpus proceedings the sufficiency of the evidence to justify a verdict or the submission of the case to the jury will not be inquired into. The writ cannot be so used as to exercise the functions of an appeal, but the court may inquire into and examine the proofs submitted at a preliminary hearing to see whether or not, first, there is any evidence tending to show that a public offense has been committed; second, there was cause to believe the accused committed it. (State v. Beaverstad, 12 N.D. 527, 97 N.W. 548; State v. Huegin, 110 Wis. 189, 85 N.W. 1046, 62 L. R. A. 700.)

The testimony taken at the preliminary examination was reduced to writing and is here for our consideration. It appears therefrom that petitioner is a physician and surgeon residing...