In re Application of Henderson for Writ of Habeas Corpus

• Citation: 145 N.W. 574,27 N.D. 155
• Decision Date: 17 February 1914
• Court: North Dakota Supreme Court

145 N.W. 574

27 N.D. 155

IN RE APPLICATION OF FRANK HENDERSON FOR WRIT OF HABEAS CORPUS

Supreme Court of North Dakota

February 17, 1914

Application of Frank Hendersen, held on bail and arrest proceedings, for writ of habeas corpus. After full hearing the writ is denied and the petitioner remanded to custody.

Writ denied.

Wolfe & Schneller and E. S. Carey, for petitioner.

On the question of intention we must strongly rely upon the declarations of the party, though they are not conclusive. Pacific Mut. L. Ins. Co. v. Tompkins, 41 C. C. A 488, 101 F. 539; State ex rel. Hattabaugh v. Boynton, 140 Wis. 89, 121 N.W. 887, 17 Ann. Cas. 618.

A prisoner extradited from another state is privileged from arrest on civil process during the pendency of the prosecution of the crime for which he was extradited, and until a reasonable opportunity has been afforded him, after such trial, to return to the jurisdiction from which he was extradited. Murray v. Wilcox, 122 Iowa 188, 64 L.R.A. 534, 101 Am. St. Rep. 263, 97 N.W. 1087; Re Cannon, 47 Mich. 481, 11 N.W. 280; Weale v. Clinton Circuit Judge, 158 Mich. 563, 123 N.W. 31; Compton v Wilder, 40 Ohio St. 130; White v. Marshall, 13-- 23 Ohio C. C. 376; Moletor v. Sinnen, 76 Wis 308, 7 L.R.A. 817, 20 Am. St. Rep. 71, 44 N.W. 1099; Small v. Montgomery, 23 F. 707; Juneau Bank v. McSpedan, 5 Biss. 64, F. Cas. No. 7,582; United States v. Bridgman, 9 Biss. 221, F. Cas. No. 14,645; Blair v. Turtle, 1 McCrary, 372, 5 F. 394; Atchison v. Morris, 11 Biss. 191, 11 F. 582; Compton v. Wilder, 40 Ohio St. 130; People ex rel. Watson v. Detroit Superior Judge, 40 Mich. 730; Re Cannon, 47 Mich. 482, 11 N.W. 280; Baldwin v. Branch Circuit Judge, 48 Mich. 525, 12 N.W. 686; Jacobson v. Hosmer, 76 Mich. 234, 42 N.W. 1110; Sherman v. Gundlach, 37 Minn. 118, 33 N.W. 549; Chubbuck v. Cleveland, 37 Minn. 466, 5 Am. St. Rep. 864, 35 N.W. 362; Palmer v. Rowan, 21 Neb. 452, 59 Am. Rep. 844, 32 N.W. 210; Wanzer v. Bright, 52 Ill. 35; Williams v. Reed, 29 N.J.L. 385; Hill v. Goodrich, 32 Conn. 588; State ex rel. Brown v. Stewart, 60 Wis. 587, 50 Am. Rep. 388, 19 N.W. 429.

The immunity from service of civil process, of a witness while attending a trial in a state not his place of residence, is universally recognized. Sherman v. Gundlach, 37 Minn. 118, 33 N.W. 549; Mitchell v. Huron Circuit Judge, 53 Mich. 541, 19 N.W. 176; Thompson's Case, 122 Mass. 428, 23 Am. Rep. 370; Person v. Grier, 66 N.Y. 124, 23 Am. Rep. 35; Mullen v. Sanborn, 79 Md. 364, 25 L.R.A. 721, 47 Am. St. Rep. 421, 29 A. 522; Bishop v. Vose, 27 Conn. 1; Wilson Sewing Mach. Co. v. Wilson, 22 F. 803, 51 Conn. 595; Baldwin v. Emerson, 16 R. I. 304, 27 Am. St. Rep. 741, 15 A. 83; Ellis v. Degarmo, 17 R. I. 715, 19 L.R.A. 561, 24 A. 579; First Nat. Bank v. Ames, 39 Minn. 179, 39 N.W. 308; Shaver v. Letherby, 73 Mich. 500, 41 N.W. 677; Fisk v. Westover, 4 S.D. 233, 46 Am. St. Rep. 780, 55 N.W. 961; Re Healey, 53 Vt. 694, 38 Am. Rep. 713; Andrews v. Lembeck, 46 Ohio St. 38, 15 Am. St. Rep. 547, 18 N.E. 483; Matthews v. Tufts, 87 N.Y. 568; Wilson v. Donaldson, 117 Ind. 356, 3 L.R.A. 266, 10 Am. St. Rep. 48, 20 N.E. 250; Halsey v. Stewart, 4 N.J.L. 367.

This immunity is intended to shield the party from litigating a case in a jurisdiction into which plaintiff had no right to bring him. Thornton v. American Writing Mach. Co. 83 Ga. 288, 20 Am. St. Rep. 320, 9 S.E. 679; Freeman, Judgm. § 296, note to Mullen v. Sanborn, 25 L.R.A. 721; Wilson v. Donaldson, 117 Ind. 356, 3 L.R.A. 266, 10 Am. St. Rep. 48, 20 N.E. 250; Fisk v. Westover, 4 S.D. 233, 46 Am. St. Rep. 780, 55 N.W. 961.

The relator is entitled to a writ of habeas corpus, and his imprisonment may be inquired into by such writ. Smith v. Jones, 76 Me. 138, 49 Am. Rep. 598; Wood v. Neale, 5 Gray, 538; Com. v. Huggeford, 9 Pick. 257; Thompson's Case, 122 Mass. 428, 23 Am. Rep. 370; Ex parte M'Neil, 6 Mass. 245; Mullen v. Sanborn, 25 L.R.A. 735, note; Mitchell v. Huron Circuit Judge, 53 Mich. 542, 19 N.W. 176.

Purcell, Divet, & Perkins and W. S. Lauder, for Frank Budock, sheriff in custody of the petitioner.

The proceeding in which the order of arrest was issued belongs to that class of actions in which arrest and bail may be invoked. In such a case, on habeas corpus, the lawfulness of the arrest and imprisonment will be inquired into only to ascertain if the court had jurisdiction. State ex rel. Mears v. Barnes, 5 N.D. 350, 65 N.W. 688; Mullen v. Sanborn, 79 Md. 364, 25 L.R.A. 734, 47 Am. St. Rep. 421, 29 A. 522; Worth v. Norton, 76 Am. St. Rep. 542, note; State ex rel. Peterson v. Barnes, 3 N.D. 131, 54 N.W. 541; State ex rel. Styles v. Beaverstad, 12 N.D. 527, 97 N.W. 548; State v. Floyd, 22 N.D. 183, 132 N.W. 662; Ex parte McCullough, 35 Cal. 97; State v. Pratt, 20 S.D. 440, 107 N.W. 538, 11 Ann. Cas. 1049.

The remedy of habeas corpus can only be invoked when there is no other remedy. 21 Cyc. 285; Ex parte Walpole, 85 Cal. 362, 24 P. 657; State ex rel. Nixon v. Second Judicial Dist. Ct. 14 Mont. 396, 40 P. 66; Re Lancaster, 137 U.S. 393, 34 L.Ed. 713, 11 S.Ct. 117; Bass v. Hightower, 94 Ga. 602, 21 S.E. 592; Ex parte Wilson, 6 Cranch, 52, 3 L.Ed. 149.

The proper place to question the validity of an arrest, under the arrest and bail statute, where the security of the defendant's body is involved, is in the court where the action is pending. Southworth v. Resing, 3 Cal. 377.

It is generally held that a person is not privileged from arrest while in custody under criminal process, or, while attending or returning from his trial, on a criminal charge. 3 Cyc. 923; 1 Am. & Eng. Enc. Law, 724; Moore v. Green, 73 N.C. 394, 21 Am. Rep. 470; Scott v. Curtis, 27 Vt. 762; Wood v. Boyle, 177 Pa. 620, 55 Am. St. Rep. 747, 35 A. 853; Browning v. Abrams, 51 How. Pr. 172; Reid v. Ham, 54 Minn. 305, 21 L.R.A. 232, 40 Am. St. Rep. 333, 56 N.W. 35; Rutledge v. Krause, 73 N.J.L. 397, 63 A. 988; White v. Underwood, 125 N.C. 25, 46 L.R.A. 706, 74 Am. St. Rep. 630, 34 S.E. 104; Re Walker, 61 Neb. 803, 86 N.W. 513, 12 Am. Crim. Rep. 343; Netograph Mfg. Co. v. Scrugham, 197 N.Y. 377, 27 L.R.A.(N.S.) 333, 134 Am. St. Rep. 886, 90 N.E. 962; Ex parte Flack, 88 Kan. 616, 47 L.R.A.(N.S.) 807, 129 P. 541.

OPINION

GOSS, J.

One Frank Hendersen has petitioned this court for a writ of habeas corpus. As grounds for the writ, proof by affidavits has been submitted, establishing that from August 1st to December 25th last Hendersen was a resident of Richland county in this state, and an employee of the Fairmount & Veblen Railway Company, a corporation. That on December 10th a criminal complaint charging embezzlement, a felony, was laid before a magistrate of said county, charging Hendersen with the commission of said crime, upon which a warrant for his arrest was duly issued. He was arrested thereon, and pending examination was held in $ 4,500 bail, which he furnished. That on December 25th Hendersen changed his residence to Minneapolis, Minnesota. This is proven by his own affidavit and those of residents of Minneapolis. That on said date he rented apartments in that city, to which he has moved his personal belongings, and where he has taken up his abode and at which place he claims to be actually residing. Although the opponents to the granting of this writ claim this residence to be merely colorable, and for the purpose of gaining some temporary advantage in these legal proceedings, and have offered affidavits tending in part to contradict the defendant's statements as to residence and to impeach his good faith, we find in favor of the petitioner on this question of fact under the proof and presumptions of law thereto applying; and find that on December 25th last the petitioner did change his residence from North Dakota to Minneapolis, Minnesota, and that on the date of this petition he was and now is a bona fide resident of Minnesota. Petitioner has returned from Minnesota without extradition for the sole purpose of defending the criminal charge of embezzlement so pending against him until the courts of this state since December 10, 1913, at all times until January 17, 1914, on which last date, after a preliminary examination lasting over two weeks, defendant was held for trial before the district court upon a charge of felony, which trial, according to the showing made, will probably take place at the coming term of district court to be held in June of this year. In holding defendant for trial the examining court has found the existence of probable cause to believe that felony has been committed and that the defendant is guilty thereof. He was so held in $ 4,500 bail pending trial, and has furnished a cash deposit in lieu of and as a bond in said amount for his appearance to answer said charge at the next term of the district court for Richland county.

After issuance of an order discharging him on bail approved, and about one minute after his release on bail, and while he was still in the court room of the magistrate taking bail, he was served with a summons, complaint, and order for arrest on bail and arrest proceedings in an action wherein the corporation procuring his arrest for embezzlement is plaintiff and the petitioner is defendant. The order upon arrest and bail issued out of the district court of Richland county, directing that this petitioner be held in custody until he shall give bail on said order in the sum of $ 5,000 as provided by law. The proceedings upon bail and arrest are in proper form and the order of arrest and bail issuable in such an action. Petitioner is imprisoned in default of bail. Without moving to vacate the service or the proceedings, he made application to the district judge of the district in which he was confined for the issuance of a writ of habeas corpus, which was denied after full hearing...