In re Betts

• Decision Date: 15 February 1893
• Docket Number: 5920
• Citation: 54 N.W. 524,36 Neb. 282
• Parties: IN RE GORHAM F. BETTS
• Court: Nebraska Supreme Court

54 N.W. 524

36 Neb. 282

IN RE GORHAM F. BETTS

No. 5920

Supreme Court of Nebraska

February 15, 1893

ORIGINAL application for writ of habeas corpus.

Demurrer to the application for the writ sustained, and action DISMISSED.

William B. Price and Charles O. Whedon, for petitioner.

George H. Hastings, Attorney General, and N. Z. Snell, for the state.

OPINION

NORVAL, J.

This is an original application to this court by the petitioner Gorham F. Betts, for a writ of habeas corpus. The petitioner is confined in the jail of Lancaster county by the sheriff of said county, by virtue of four warrants, or writs of capias, issued by the clerk of the district court of the said county of Lancaster, which said warrants were respectively issued and based upon four indictments found and returned into said court at the September, 1892, term thereof by the grand jury of said county, which said indictments charge the petitioner with the commission of divers felonies.

The petition for the writ of habeas corpus shows that the term of court at which said indictments were presented and filed commenced on the 19th day of September, 1892, and that the only order made by the judge of said court directing a grand jury to be drawn or summoned to attend at the said term of court was and is an order made in open court by the judges thereof on the 25th day of October, 1892.

The petition also charges, in substance, that neither the clerk of said district court, nor his deputy, together with either the sheriff, his deputy, or the coroner of said county, ten days, or any time, before the first day of the session of said district court at said term thereof, met and drew the names of sixteen persons to serve as grand jurors; that the county board of said county did not twenty days, nor any number of days, before the commencement of the term of court at which said indictments were found and presented, select twenty-three persons, possessing the qualifications as provided in section 2 of chapter 43 of the Session Laws of 1889, to serve as grand jurors; that no order, proceeding, or step was made, had, or taken by either of the judges of said court, nor by the county board, the county clerk, his deputy, the sheriff, his deputy, nor the coroner in the selecting, drawing, or summoning of a grand jury for said September term of said court prior to the commencement of said term, nor for more than a month after such commencement.

The cause is submitted on a general demurrer to the petition. The sole ground upon which the writ is asked is that the grand jury which indicted the petitioner was not a legal body, for the alleged reason that the grand jurors were not ordered selected, and summoned at the time and in the mode prescribed by section 5227 of Cobbey's Consolidated Statutes.

Whether the said grand jury was or was not a legally constituted tribunal we are not called upon to determine in this case, nor do we now decide. The supposed errors and defects relied upon are not jurisdictional, and hence are not available in a proceeding like this, for it is well established in this state that mere errors and irregularities in a judgment or proceedings of an inferior court in a criminal case, under and by virtue of which a person is imprisoned, or deprived of his liberty, but which are not of such a character as to render the proceedings absolutely void, cannot be reviewed on an application for a writ of habeas corpus. The writ cannot perform the office of a writ of error, but only reaches jurisdictional defects in the proceedings. (Ex parte Fisher, 6 Neb. 309; In re Balcom, 12 Neb. 316; State v. Banks, 24 Neb. 322; Buchanan v. Mallalieu, 25 Neb. 201.) And the rule just stated has support in numerous decisions from other courts. (State v. Orton, 67 Iowa 554, 25 N.W. 775; In re Graham, 74 Wis. 450, 43 N.W. 148; In re Ellis, 44 N.W. 616; In re Pikulik, 81 Wis. 158, 51 N.W. 261; Emanuel v. State, 36 Miss. 627; Ex parte Boland, 11 Tex. Ct. App. 159; Ex parte Bowen, 25 Fla. 214, 6 So. 65; Com., ex rel. Davis, v. Lecky, 1 Watts 66; People v. Rulloff, 5 Parker Cr. 77; Ex parte McCullough, 35 Cal. 97; Ex parte Mirande, 14 P. 888; In re Bion, 59 Conn. 372, 20 A. 662; Ex parte Smith, 26 P. [Cal.], 638; Ex parte Brandon, 4 S.W. 452; Ex parte McKnight, 48 Ohio St. 588, 28 N.E. 1034; Ex parte Parks, 93 U.S. 18, 23 L.Ed. 787; Ex parte Prince, 9 So. 659; O'Malia v. Wentworth, 65 Me. 129.)

The Texas court of appeals, in Ex parte Boland, supra in speaking of the office of the writ of habeas corpus, say that "the writ may be resorted to when the proceedings sought to be inquired into are radical in their character, illegal, and void. (Ex parte Slaren, 3 Tex. Ct. App. 662.) It deals with such irregularities as render the proceedings void. (Perry v. State, 41 Tex. 488.) It does not reach such irregularities as would render a judgment voidable only, but only such irregularities as render the proceedings void. ( Ex parte McGill, 6 Tex. Ct. App. 498.) Illegality is properly predicable of radical defects only, and signifies that which is contrary to the principles of law, as distinguishable from mere rules of procedure. (Ex parte Scwartz, 2 Tex. Ct. App. 74.) An irregularity is defined to be a want of adherence to some prescribed rule or mode of proceeding. It consists in omitting to do something which should have been done, or in doing it in an unreasonable time, or in an improper...