In re Dykes

• Decision Date: 10 September 1903
• Citation: 74 P. 506,13 Okla. 339,1903 OK 77
• Parties: In re DYKES et al.
• Court: Oklahoma Supreme Court

74 P. 506

13 Okla. 339, 1903 OK 77

In re DYKES et al.

Supreme Court of Oklahoma

September 10, 1903

Syllabus by the Court.

1. One who has been arrested upon an indictment pending in the district court, and enters into a bond for his appearance and is discharged from custody, is not entitled to a writ of habeas corpus for the purpose of procuring his discharge because he has not had a speedy trial. It is only one who is under physical, and not simply moral, restraint, that can invoke this remedy.

2. Where the petitioner is not in actual custody, but is on bail, this court will not take jurisdiction of the case and grant a writ of habeas corpus upon the stipulation of the county attorney that the petitioner may be considered in custody for the purpose of the hearing.

3. Where a defendant in a criminal cause is on bail, and voluntarily surrenders himself, or where it is shown that the restraint is collusive, for the purpose of making a case on habeas corpus, the proceeding will be dismissed.

4. This court will not interfere by habeas corpus to discharge a person indicted for a crime until after such person has applied to the trial court for the appropriate relief.

In the matter of the petition of James Dykes and Frank Baker for discharge on habeas corpus. Writs denied.

J. A Baker, for petitioners.

S. H Cunningham, Co. Atty., for respondent.

BURFORD C.J.

The petitioners were at the February term, 1902, of the district court of Comanche county, indicted for the crime of grand larceny. They were arrested and admitted to bail, and have been at liberty ever since. They claim that they have not had a trial as required by section 5419, Rev. St. 1893, and they ask this court to discharge them on habeas corpus. It is conceded that they are not in custody, but the county attorney has stipulated that, for the purposes of this hearing, it may be considered that they are in the custody of the sheriff. We cannot consent to acquire jurisdiction in this manner. The Supreme Court of Kansas, in the case of In re Dill, 11 P. 672, refused to entertain a petition for habeas corpus when there was no actual imprisonment, and the sheriff had colluded with the petitioner to allow him to voluntarily surrender in order to enable him to prosecute his action for discharge. And the Supreme Court of California, in a very recent case (In re Gow, 73 P. 145), said: *** The growing frequency of applications of this character, by which the more important business of the court is seriously impeded, has led us to consider whether it is not an abuse of the remedy by habeas corpus. *** Our conclusion is that such a practice ought not to be countenanced, and hereafter the court will make strict inquiry in this class of cases whether the alleged imprisonment is actual and involuntary; and if it is found to be, as in this case, a merely nominal restraint, voluntarily submitted to for the purpose of making a case, the proceeding will be dismissed." And we cheerfully approve this doctrine.

The law is well settled that a prisoner on bail is not entitled to the benefit of the writ of habeas corpus. The writ is for the benefit of those unlawfully restrained of their liberties, and this means physical, and not moral, restraint. Ex parte Coupland, 26 Tex. 387; Territory v. Cutler et al., McCahon, 152; In re Walker, 53 Miss. 366; Spring v. Dahlman, 34 Neb. 692, 52 N.W. 567; Republica v. Arnold, 3 Yeates, 263; Church on Habeas Corpus § 9; In re Brydon (N. M.) 43 P. 691; 15 Am. & Eng. Ency. Law, p. 159; Wales v. Whitney, 114 U.S. 564, 5 S.Ct. 1050, 29 L.Ed. 277.

There are other reasons why the petitioners are not entitled to this relief. It is not alleged in the petition, or shown in the stipulation, that they have ever applied to the...