In re Corpus

• Decision Date: 07 September 1894
• Citation: 1894 OK 26,2 Okla. 369,37 P. 1066
• Parties: In the Matter of the Petition of JOHN DOSSETT for a Writ of Habeas Corpus.
• Court: Oklahoma Supreme Court

1894 OK 26

37 P. 1066

2 Okla. 369

In the Matter of the Petition of JOHN DOSSETT for a Writ of Habeas Corpus.

Supreme Court of Oklahoma

Decided: September 7, 1894

SYLLABUS

¶0 1. DISTRICT COURT--Adjourned Sessions--The district courts of Oklahoma Territory have authority and power to hold adjourned sessions of court, after the commencement of the regular term, at a time or times not designated in the order of the supreme court fixing the times when terms of said court shall begin.

2. JUDGMENTS--The proceedings of such adjourned sessions are not coram non judice and void, notwithstanding the regular term in another county in the same district had intervened between the time of the adjournment and the convening of the adjourned session.

3. JUDGE--Absence--After the court has once regularly convened on the day fixed by order of the supreme court, it can expire only by adjournment sine die or by operation of law, and unless adjourned sine die, will not so expire by operation of law, until the first day of the next regular term in the same or another county, and failure of the judge to attend on a distant day to which the said court is adjourned, after having been regularly convened on the date fixed, will not result in the loss or lapse of the term.

4. SESSION--Conflict-- Notwithstanding the Payne county court was theoretically in session, during the same period that the petitioner was tried for murder, in Logan county, yet such session of court was not such as the law contemplates in the observance of the rule that two courts cannot be in session in the same district at the same time.

5. SAME--Under the law as it now exists in this territory, since the act of congress of December 21, 1893, quaere: Can two courts, in the same district, be in session at the same time?

[STATEMENT OF THE CASE]

On the 1st day of January, 1894, John Dossett filed his petition for a writ of habeas corpus. He was tried on an indictment, returned by the grand jury of Logan county into the district court, for the crime of murder. His trial commenced on the 18th day of August, 1893, and continued from day to day until the 28th day of August, 1893, the court sitting with the powers of a United States district and circuit court. On the latter date, a verdict of guilty was rendered against him, as charged in the indictment. Motions for a new trial and arrest of judgment were filed, passed upon and overruled by the court, and on the 9th day of November 1893, the court pronounced judgment of death upon him, fixing the date of his execution, January 8, 1894. From the judgment of the court the defendant has appealed, and the appeal is now pending in this court. In the meantime, to-wit: on the 1st day of January, 1894, he instituted this proceeding in habeas corpus, alleging:

"1. That he is illegally and unlawfully restrained of his liberty, and is confined in a certain jail, com- monly known and designated as the United States jail, situated in the city of Guthrie, in the county of Logan and the Territory of Oklahoma.

"2. That he is so held by one E. D. Nix, who is the lawfully appointed and qualified United States marshal for Oklahoma Territory, and that he is so held by the said Nix under and by virtue of a certain commitment and order of the district court of Logan county, Oklahoma Territory, as more fully appears hereinafter.

"3. That heretofore, to-wit: on the 18th day of August, 1893, this defendant was being held in custody in Logan county, Oklahoma Territory, charged with the crime of murder in the first degree, and was so held for the purpose of being prosecuted in the district court of Logan county, Oklahoma Territory, sitting as a United States court.

"4. That on said 18th day of August, 1893, this defendant was called to the bar of the district court of Logan county, aforenamed, and a trial upon said indictment was begun, in said court, and that said trial was continued from day to day and proceedings had therein until the 28th day of August, l893, at which time a verdict of guilty was rendered in said cause against this defendant.

"5. That afterwards a motion for a new trial was filed in said cause and the same was passed upon by said court and overruled, and a motion in arrest of judgment was thereupon filed, which motion was overruled by said court, and this defendant was, by said court, sentenced to be hanged on the 8th day of January, 1894.

"6. That this defendant is now being held by the power and process of said court, under and by virtue of the proceedings herein set forth. That heretofore, to wit: on the 28th day of January, 1892, the Territory of Oklahoma was sub-divided into three judicial districts. as by the supreme court of the Territory of Oklahoma ordered and directed, and that one of said judicial districts was known and designated as the First judicial district, and that said judicial district comprised the counties of Logan, Payne and A, in said Territory of Oklahoma. That on said 28th day of January, 1892, the said supreme court of the Territory of Oklahoma, met in session at the city of Guthrie, and pursuant to the power and authority vested in said court by the Organic Act of the Territory of Oklahoma. made and entered of record an order, providing that the terms of the district court, in the First judicial dis- trict, should be as follows: That a term of said district court should commence in the city of Guthrie, in the county of Logan, on the first Monday of March and September of each year, and that a term of said district court should commence in the town of Stillwater, in the county of Paine, on the third Tuesday in April, and first Tuesday in November of each year, and that a term of said district court should commence in the town of Chandler, in the county of A, on the fourth Tuesday of May and last Tuesday of November of each year.

"7. That a copy of the record of the proceedings of the supreme court of the Territory of Oklahoma, had on said 28th day of January, 1892, in so far as the same relates to and affects the terms of court, to be holden in the said First judicial district, is attached to this petition, marked 'Exhibit A' and made a part hereof.

"8. That on the said 28th day of January, 1892, and at all of the times mentioned in this petition until the ending of the said trial of this petitioner as herein set forth, the Hon. E. B. Green was judge of the First judicial district of the Territory of Oklahoma aforenamed.

9. That in compliance with the provisions of said order so made by the supreme court of the Territory of Oklahoma, the Hon. E. B. Green, judge of the First judicial district aforesaid, opened court in the town of Stillwater, in the county of Payne, in the month of April, and on the third Tuesday thereof, as by law provided, and held court therein at divers and sundry times during the months of April, May and August, and adjourned said court from time to time, from the commencement thereof in the month of April, until the 1st day of September, 1893.

"10. That during all of the time that the said trial was being held in which this petitioner was convicted in the county of Logan, as herein set forth, the district court of the First judicial district was in actual session in the county of Payne, in said First judicial district.

"11. This petitioner avers, that by reason of the premises, the Hon. E. B. Green had no right, power or authority to hold a session of the district court in the county of Logan as aforesaid, and that the said district court of the county of Logan was not, and could not be, in session for the purposes of the transaction of any business whatsoever, and that all of the acts done and performed by the said E. B. Green, in the trial of said cause, were without authority of law and contrary to law, and were, and are, absolutely void and of no force or effect whatsoever.

"12. This petitioner says that his trial and conviction were, and are, absolutely void, and that his incarceration thereunder is illegal and unlawful."

The petition is verified by George Gardner, one of the attorneys for the petitioner.

Exhibit "A." referred to in the complaint, reads as follows:

"UNITED STATES OF AMERICA, TERRITORY OF OKLAHOMA--SS.:

"Be it remembered, that on the 28th day of January, 1892, the supreme court of the Territory of Oklahoma met in the city of Guthrie, pursuant to adjournment, and there were present Hon. E. B. Green, chief justice, presiding, and Hon. A. J. Seay, associate justice; John F. Stone, Esq., assistant United States attorney; William Grimes, marshal, by J. C. Robb, deputy; Charles H. Filson, clerk, and E. P. Babcock, crier:

"Proclamation of the opening of said court having been made by said crier, the following proceedings were had.

"In re: Changing the Date Holding Terms of the District Court in the Various Districts of the Territory of Oklahoma.

"It is ordered by the court that a term of the district court shall be held in the First judicial district of said territory, at the city of Guthrie, county of Logan, commencing on the first Monday of March and September, of each year, and that a term of said district court shall be held at the town of Stillwater, in the county of Payne, commencing on the third Tuesday in April and first Tuesday in November, of each year, and that a term of said district court shall be held at the town of Chandler, in county A, commencing on the fourth Tuesday in May and last Tuesday in November, of each year.

By agreement of the parties, the issuance of the writ was waived, and all of the questions submitted upon the petition and the agreed statement of the record and the facts as follows:

"District Court, Payne County, Oklahoma Territory:

"Be it remembered, that now, at this time, April 18, 1893, the district court of the First judicial district, of the Territory of Oklahoma, sitting in and for said county of Payne, was convened at the hour of 10 o'clock A. M., for the regular April term, 1893, and was, by order of court and...