In re Clyne

• Decision Date: 09 December 1893
• Citation: 35 P. 23,52 Kan. 441
• Parties: In the matter of the Petition of JOSEPH CLYNE for a Writ of Habeas Corpus
• Court: Kansas Supreme Court

35 P. 23

52 Kan. 441

In the matter of the Petition of JOSEPH CLYNE for a Writ of Habeas Corpus

Supreme Court of Kansas

December 9, 1893

Original Proceeding in Habeas Corpus.

A SUFFICIENT statement of the case is contained in the opinion herein, filed December 9, 1893.

J. W Rose, for petitioner:

The petitioner claims that the warrant issued on the 23d day of January, 1893, was not issued in good faith, and was not delivered to the sheriff with the intention of having him execute it at the time that it was delivered or at any early day thereafter, but that this warrant was issued in order to stop the running of the statute of limitations. The officer in this case having the warrant respected the request and order of the county attorney, and did not execute the warrant as required by law. The mere filing of the complaint is not a sufficient bringing of an action. In re Griffith, 35 Kan 377. "A suit in law is not commenced, so as to avoid the statute of limitations, until the writ is completed, with the intention of making immediate service." Clark v Slayton, 1 A. 113; Robinson v. Burleigh, 5 N.H. 225; Graves v. Ticksnor, 6 id. 537; Hardy v. Corlis, 21 id. 356; Mason v. Cheney, 47 id. 24; Brewster v. Brewster, 52 id. 60.

If this is the rule in a civil case, how much more would it be in a criminal case. In order to constitute good faith, there must be an intention in delivering the writ to the sheriff to have it immediately executed. See, also, Ross v. Luther, 4 Cow. 158; Burdick v. Green, 18 Johns. 14.

Counsel for the state claim that the petitioner concealed the fact of the crime. But see The State v. Colgate, 31 Kan. 511.

The petitioner has been once put in jeopardy, by reason of the fact that he was discharged by Judge BAILEY on habeas corpus proceedings, on April 16, 1892. "Where one is discharged on habeas corpus, a rearrest is unlawful, the matter being res adjudicata." Wells, Res. Adj. § 421. See, also, Church, Hab. Corp., § 386; 9 Am. & Eng. Encyc. of Law, p. 238; Freem. Judg., § 324; Ex parte Jilz, 27 Am. Rep. 218; People v. Fairman, 59 Mich. 568; In re Crow, 60 Wis. 349; Bonnett v. Bonnett, 61 Iowa 199; In re McConologue, 107 Mass. 154.

It is submitted that, looking over the entire evidence given before the justice of the peace, there is no probable cause to believe that the defendant is guilty of the offenses charged.

John T. Little, attorney general, and O. C. Jennings, county attorney, for The State; Valentine, Harkness & Godard, of counsel.

A judgment or order in habeas corpus can never, in any proper sense, be considered as a final determination, or one that would render the matters involved therein res adjudicata. See Church, Hab. Corp., § 386; Whar. Cr. Pl. & Pr., § 1011; Bish. New Cr. Law, § 1014. See, also, Ex parte Milburn, 9 Pet. 704; Ex parte Powell, 20 Fla. 806; In re White, 45 F. 237; Walker v. Martin, 43 Ill. 508. In Weir v. Marley, 99 Mo. 484, it is held:

"The doctrine of res adjudicata does not apply in cases of habeas corpus to judgments remanding a prisoner. Nor does it apply to judgments discharging a prisoner, where there is a new state of facts warranting his restraint."

We claim that the criminal proceedings against defendant Clyne are not barred by any statute of limitations, for the following among other reasons: (1) The prosecution was commenced in good faith within less than two years after the commission of the offense; (2) the fact of the commission of the offense was concealed from the public and from the public prosecutor until November 24, 1891, if not until in March, 1892; and hence all the intervening time from the time of the commission of the offense, on January 25, 1891, up to the first of the foregoing dates, if not up to the last, must be excluded from the computation of the time. Crim. Code, § 33.

The warrant under which Clyne was arrested for the second preliminary examination was issued on January 23, 1893, two days less than two years after the crime was committed, and Clyne was arrested upon that warrant. In 1 Am. & Eng. Encyc. of Law, 184, the following language is used:

"Except in Connecticut and Vermont, the issuing or suing out of the writ is the commencement of the action. In those states the service is the commencement."

This proposition is supported by the authorities. See, also, In re Griffith, 35 Kan. 381, quoting from The People v. Clark, 33 Mich. 120. But for stronger cases than these, see the following: Benson v. The State, 8 So. 873; The State v. Miller, 11 Humph. 505; The State v. Howard, 15 Rich. (S. C. Law) 274, 282; Michigan &c. Bank v. Eldred, 130 U.S. 693; People v. Clement, 72 Mich. 116, 118-121, and the dissenting opinion of Judge Sherwood, and cases there cited.

In the case of Chicago &c. Rld. Co. v. Jenkins, 103 Ill. 588, 597, the following language is used:

"On the other hand, the books are full of cases holding the mere commencement of a suit without service within the statutory period will prevent it [the statute] from becoming a bar."

We have examined all the authorities cited by counsel for Clyne upon the question of when a criminal action shall be deemed commenced. They are not against us. They generally hold that "the date, and not the service of the writ, indicates the time when the action is commenced." Brewster v. Brewster, 52 N.H. 52, 60. And no one of such authorities holds that, where a writ is issued and served, as in this case, the action was not commenced at the date of the writ.

Under any definition of the word "conceal," Clyne has persistently and continuously concealed the fact of his crime. He has done so even under the peculiar definitions given by the supreme court of Indiana. But if he has not done so, for a time at least, under the circumstances of this case, then no person can ever conceal a crime, and the statute is useless. As to what the word "conceal" means, see the dictionaries, and the following among other cases: Harper v. Pope, 9 Mo. 398, 402; Gerry v. Dunham, 57 Me. 334; Bank v. Harris, 118 Mass. 147; National Bank v. Perry, 144 id. 313; Bradford v. McCormick, 71 Iowa 129; Wilder v. Secor, 72 id. 161; Carrier v. Railway Co., 79 id. 80, 90; Cook v. Railway Co, 81 id. 551, 564; Reynolds v. Hennessy, 23 A. (R. I.) 639, 640; Hughes v. Bank, 1 A. 417; Ney v. Rothe, 61 Tex. 374; Holt v. Wilson, 75 Ala. 58.

As to the claim of the applicant that the evidence is not sufficient to show probable cause to believe that he is guilty, we have nothing to say. We believe the evidence is sufficient to warrant a conviction before a petit jury. Besides, habeas corpus is not the proper proceeding in which to try criminal cases. It was not instituted for that purpose.

ALLEN J. All the Justices concurring.

OPINION

ALLEN, J.:

On the 18th day of March, 1892, a complaint was filed before a justice of the peace of Stafford county, charging the petitioner and other persons with burglariously breaking and entering the office of the county treasurer of Stafford county, on the 25th day of January, 1891. The complaint contained five counts, charging burglary and grand larceny in different forms. A warrant was issued on this complaint, and the petitioner arrested and taken before the magistrate who issued the warrant. Thereupon, a preliminary examination was held, and Clyne was required to give bond for his appearance for trial, in default of which he was committed to jail. Thereafter, on the 5th of April, 1892, a petition was presented to Hon. J. H. BAILEY, judge of the district court, by Clyne, asking discharge from custody. The hearing was had, and the petitioner discharged, for the reason that the evidence was insufficient to show probable guilt of the accused. Afterward, on the 23d day of January, 1893, another complaint was filed before a different justice of the peace, charging the defendant and others with conspiring together to burglariously break and enter the county treasurer's office, and that, in pursuance of such conspiracy, they did so break and enter it on the 25th day of January, 1891, and did feloniously steal money and records then kept and deposited in said office, the property of Stafford county; the second count charges a similar conspiracy and burglary at the same time to have been committed in the county clerk's office; the third count charges the larceny of the sum of $ 6,000, the property of Stafford county; and the fourth count, the larceny of books from the county treasurer's office.

On this complaint, a warrant was issued on the same day, and delivered to the sheriff. Clyne was out of the state from the 8th to the 23d of January, 1893. He returned to Stafford on the 23d. The warrant was not served until the 16th day of June, 1893, although the defendant was in Stafford county where the sheriff could have taken him on almost any day. At the time the warrant was issued, the county attorney supposed that Clyne was out of the state, and he directed the sheriff to hold the warrant until he saw him again. It appears from the evidence of the sheriff that he saw Clyne frequently while he had the warrant in his possession, and could have made the arrest; and it further appears, that the county attorney wished the sheriff to delay service of the warrant, in order that he might find more testimony before another examination should be held. After the arrest was made under the warrant last issued, another preliminary examination was had, and the defendant again held for trial. On this examination, three witnesses not introduced on the hearing before Judge BAILEY gave the most damaging testimony which was at any time produced against the petitioner. The petitioner was committed to the jail of Reno county, there being no sufficient jail in Stafford county, and thereafter he made application to...