In re Application of Tierney

• Decision Date: 23 November 1931
• Docket Number: 5820
• Citation: 51 Idaho 279,5 P.2d 539
• Parties: In the Matter of the Application of MICHAEL J. TIERNEY for a Writ of Habeas Corpus
• Court: Idaho Supreme Court

5 P.2d 539

51 Idaho 279

In the Matter of the Application of MICHAEL J. TIERNEY for a Writ of Habeas Corpus

No. 5820

Supreme Court of Idaho

November 23, 1931

HABEAS CORPUS-COMMITMENT OF INEBRIATE-AFFIDAVIT OF PROSECUTING ATTORNEY, SUFFICIENCY OF-RELEASE AND SUBSEQUENT COMMITMENT.

1. Affidavit charging inebriety in language of statute held sufficient, in habeas corpus proceedings after commitment to asylum (C. S., secs. 1177, 1191).

2. Release of inebriate at first hearing held not to warrant release on habeas corpus after subsequent commitment, where there was no proof that condition had not continued (C. S secs. 1191, 9289).

APPLICATION of Michael J. Tierney for a Writ of Habeas Corpus. Writ quashed.

Writ quashed. No costs allowed.

A. L Morgan, for Plaintiff.

The court was without jurisdiction to make and enter the order made herein for the reason that the affidavit filed on the eleventh day of April, 1931, did not state facts sufficient to warrant the magistrate in issuing the warrant nor did it state facts sufficient to authorize the district judge to hold a hearing on said matter nor facts sufficient to support the commitment thereafter made. (C. S., sec. 1191; Ex parte Watson, 63 Cal.App. 424, 218 P. 600; Henley v. Superior Court, 162 Cal. 239, 121 P. 921; Ex parte Crowley, 95 Cal.App. 219, 272 P. 787.)

Fred J Babcock, Attorney General, and Z. Reed Millar, and Maurice H. Greene, Assistant Attorneys General, for Respondent.

Where the affidavit alleges in the language of the statute the condition of the defendant as a fact, it is sufficient to give the court jurisdiction after proper notice, when questioned in habeas corpus. (Bancroft's Code Practice and Remedies, pars. 2250, note 14, 3337 and 3339; Ex parte Liggett, 187 Cal. 428, 202 P. 660; In re Henley, 18 Cal.App. 1, 121 P. 933.)

GIVENS, J. Lee, C. J., and Budge, Varian and McNaughton, JJ., concur.

OPINION

GIVENS, J.

April 11, 1931, an affidavit was filed before a justice of the peace in Moscow:

" . . . . That Michael J. Tierney is a resident of the County of Latah, State of Idaho, and is so far addicted to the intemperate use of alcoholic stimulants as to have lost the power of self-control and to be subject to dipsomania or inebriety.

"Wherefore, affiant prays that a warrant be issued directing that the said Michael J. Tierney be arrested and taken before the District Court of this County or the Judge thereof for a hearing or an examination upon said charge. . . . "

Pursuant to this affidavit, petitioner was brought before Honorable Gillies D. Hodge, District Judge of the Second Judicial District; a hearing held, and the matter postponed, and defendant permitted to go on his own recognizance.

No question is raised that at such hearing petitioner was not fully informed of the charge against him, and allowed to produce whatever evidence he desired. He was represented by counsel, and did not question the sufficiency of the affidavit or process, or object in any way to the proceedings or the disposition of the action.

September 28, 1931, the prosecuting attorney of Latah county filed the following affidavit:

" . . . . Abe Goff, being first duly sworn, upon oath deposes and says:

"That he is the Prosecuting Attorney for Latah County, State of Idaho; and that heretofore, and on the 14th day of April, 1931, one Michael J. Tierney was brought before the above entitled Court and certain evidence was introduced tending to show that the said Michael J. Tierney was so addicted to the use of alcoholic stimulants as to have lost the power of self-control; that after such evidence had been introduced and the Court had fully considered the same, the Court decided to continue the hearing in said matter to determine whether said Michael J. Tierney had in fact lost the power of self-control. The Court ordered that he be released and that he refrain from the use of alcoholic stimulants of every kind and nature, and further directed that should he so indulge, he should be brought before this Court and sent to the Northern Idaho Sanitarium for treatment.

"That in violation of the Court's order that he should refrain from the use of alcoholic stimulants, the said Michael J. Tierney has persisted in the use of such intoxicants and has repeatedly been intoxicated at various and sundry times and occasions, the exact dates of which affiant does not now remember, and will continue to do so unless he is sent away for proper treatment; that on several of the occasions when the said Michael J. Tierney has been drunk, he has written bad checks and secured money thereon and that affiant now has in his possession three such checks and is informed and believes that there are several others outstanding which have been so written without funds by the said Michael J. Tierney.

"Wherefore, affiant prays that the above entitled Court issue a bench warrant for the arrest of Michael J. Tierney, that a hearing in this case be completed and that if the Court finds that this affidavit has truly stated the facts herein, then that the said Michael J. Tierney be placed under proper care for treatment. . . . "

Thereafter on a bench warrant, issued by the aforementioned district court, pe...