In re Application of Resler
| Decision Date | 09 March 1927 |
| Docket Number | 25779 |
| Citation | 212 N.W. 765,115 Neb. 335 |
| Parties | IN RE APPLICATION OF KATE RESLER, ALSO KNOWN AS KATE DAVIS, FOR A WRIT OF HABEAS CORPUS |
| Court | Nebraska Supreme Court |
ORIGINAL application for writ of habeas corpus. Writ allowed.
PETITIONER DISCHARGED.
Bernard McNeny, John F. Fults and Edward J. Lambe, for petitioner.
O. S Spillman, Attorney General, John Stevens and Wade Stevens contra.
Heard before GOSS, C. J., ROSE, DEAN, DAY, GOOD, THOMPSON and EBERLY, JJ.
An application to this court was made at a former day for a writ of habeas corpus on the allegation that the plaintiff was then unlawfully imprisoned and detained in the county jail of Furnas county, Nebraska, under the findings and order of the county judge of that county.
On consideration of the application the court was of the opinion that the facts herein recited fairly raised the question whether the county judge, in making the findings and entering the order as an examining magistrate, in a cause then pending before him on December 14, 1926, had not exceeded his power. It therefore directed the writ to issue. To this writ return has been made. The cause has been heard by the court upon the application for the writ (including a transcript of the evidence received, and all proceedings had at the preliminary examination referred to and duly settled and allowed by the county judge and made a part of the proceedings by his order), the respondent's return thereto, and a stipulation of all parties in interest "waiving the presence of the petitioner before" this court.
Disclaiming any assertion of a general power of review over the proceedings of examining magistrates in matters of determining by them "that an offense has been committed, and there is probable cause to believe that the person charged has committed the offense," we proceed to ascertain from an examination of the entire record before us whether, in view of the facts contained therein, the county court of Furnas county, or the judge thereof, had power to make the findings and enter the order of commitment thereon in this case.
It appears that on March 19, 1926, an information in proper form was filed in the district court for Furnas county, Nebraska, which, omitting formal parts, and appropriate technical terms as to premeditation, malice, and intent, charged the petitioner, Kate Davis, with a violation of section 9544, Comp. St. 1922, by setting forth that on or about the 30th day of August, 1925, "the said Bert M. Davis * * * did * * * give and administer to the said Blanche A. Davis a large quantity of a certain deadly poison called strychnine, sometimes also called strychnia alkaloid," and that "the said Blanche A. Davis * * * did then and there take said poison and swallow the same, * * * by reason and by means of which, * * * on said 30th day of August, 1925, * * * did die; and before said poisoning and murder were committed by the said Bert M. Davis some time during the year 1925, the exact date or dates being unknown to complainant, and in the county of Furnas, and state of Nebraska, one Kate Resler, who is now also known as Kate Davis, did unlawfully, feloniously, wilfully, purposely, and of her own deliberate and premeditated malice, procure, incite, counsel, advise, aid and abet the said Bert M. Davis in the perpetration and commission of said poisoning."
Thereafter, in a district court of competent jurisdiction, to a properly impaneled jury, a trial was regularly had on this information, and at its close, after instructions by the court, and after consideration of the evidence adduced, the jury, on June 27, 1926, in open court, returned a verdict of "not guilty," which verdict was duly accepted and received by the court and entered on the records thereof, and an order thereupon made and entered discharging said jury from further consideration of said cause, and further providing that petitioner "be and is hereby released and discharged."
On November 8, 1926, the county attorney of Furnas county filed a complaint in due form in the county court of Furnas county which, omitting formal allegations, charged: "That at some time during the year 1925, and prior to the 31st day of August of said year, the exact date being to complainant unknown, in the county of Furnas, and state of Nebraska, one Kate Resler, who is now also known as Kate Davis, and one Bert M. Davis, then and there being, did then and there unlawfully and feloniously confederate and conspire together to commit a felony, to wit, to administer poison to one Blanche A. Davis with the intent to destroy or take the life of the said Blanche A. Davis; and in pursuance of said conspiracy and to effect the object thereof, the said Kate Resler and Bert M. Davis did, in the said county of Furnas, and state of Nebraska, on various dates within the time aforesaid, the exact dates being to complainant unknown, give and administer to the said Blanche A. Davis certain poisons, the exact nature of which are to complainant unknown, with intent to destroy or take the life of the said Blanche A. Davis, and did mix certain of such poisons, the exact nature and name of which are to complainant unknown, in water, food, drink and medicine with the aforesaid intent, and did offer and give the same to the said Blanche A. Davis and induce her to take and swallow the same with the intent of them, the said Kate Resler and Bert M. Davis, to destroy or take the life of the said Blanche A. Davis."
Upon this complaint the preliminary examination now before us was held and resulted in the findings and order of commitment complained of.
That, in this case, the petitioner may properly present the question involved by habeas corpus, we have no doubt. It is firmly established that if a court or a judge thereof which renders a judgment, or who enters an order, has not jurisdiction to perform the act done, either because the proceeding or the law under which it is taken is unconstitutional, or for any other reason the judgment is void, it may be questioned collaterally, and a defendant who is imprisoned under and by virtue of it may be discharged. In re Havlik, 45 Neb. 747; In re Application of McMonies, 75 Neb. 702, 106 N.W. 456; In re Vogland, 48 Neb. 37, 66 N.W. 1028.
In the present case it is true that the ground for habeas corpus was not the invalidity of an act of the legislature under which the petitioner was informed against, but because it was claimed to be a second prosecution for the same offense contrary to the express provisions of our Constitution. In other words, the contention is that the constitutional rights of the defendant were violated by her second arrest and detention for the same offense contrary to the express terms of the Constitution that no person shall be twice put in jeopardy for the same offense. It is difficult to see why a conviction and punishment under an unconstitutional law is more a violation of a person's constitutional rights than an unconstitutional conviction under a valid law. In the first case it is true the court has no authority to take cognizance of the case, but in the second it has no authority to render judgment against the defendant. Michaelson v. Beemer, 72 Neb. 761, 101 N.W. 1007.
In view of the fact that our constitutional provisions were, in fact, intended to secure an absolute immunity and unqualified privilege to a defendant legally acquitted on a criminal charge of never again being subject to further arrest, detention, molestation, or inconvenience based upon that which has been once solemnly determined in his favor, these provisions are certainly limitations on the power of the court to, in any manner, violate or infringe the right thus plainly granted and conferred by the fundamental charter of the state.
In the present case, therefore, the finding that a crime has been committed, if the same be one of which the accused had theretofore been legally acquitted, and the further finding that there was probable cause for believing the petitioner guilty of the same, followed by a mittimus restricting her liberties, was certainly beyond the power of the court and beyond its jurisdiction to enter because it was against the express provisions of the Constitution which bounds and limits all jurisdiction involved. Hans Nielsen, Petitioner, 131 U.S. 176; Ex parte Bornee, 76 W.Va. 360, 85 S.E. 529; Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872; Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717; In re Snow, 120 U.S. 274, 30 L.Ed. 658, 7 S.Ct. 556.
It follows, therefore, that habeas corpus is the proper remedy in the instant case, and properly presents the question of the validity of the proceedings against the petitioner and the legality of her present imprisonment.
The record before us discloses that at the preliminary examination, excepting certain evidence of a strictly cumulative character, all of the proof presented to the examining magistrate had been heard, considered and passed upon by the jury in the trial of petitioner on the charge of murder by poisoning. It also appears without question that the time, place, party, and transactions involved in the information herein set out, and in the complaint above set forth, are in all respects identical. There is no question before us involving disputed facts or conflicting evidence. It is wholly a matter of law.
It is claimed by the respondent, however, that even though the time, place, parties, and the transactions involved be identical, yet in view of legislative action there is involved three distinct crimes: (a) Criminal conspiracy section 9543, Comp. St. 1922; (b) administering poison with intent to take life, section 9563, Comp. St. 1922; (c) murder by administration of poison or causing the same to be done, section 9544, Comp....
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Neb. Const. art. I § I-12 Evidence Against Self; Double Jeopardy
...offense for which she is being held for trial, jeopardy attached by virtue of the former trial, and habeas corpus will lie. In re Resler, 115 Neb. 335, 212 N.W. 765 Where jury is discharged after deliberating so long that there is no probability of agreeing and the accused held to a further......