In re Garvey
| Decision Date | 01 October 1884 |
| Citation | 4 P. 758,7 Colo. 502 |
| Parties | In re GARVEY. |
| Court | Colorado Supreme Court |
Petition for habeas corpus.
Wells, Smith & Macon, for petitioner.
D F. Urmy, Atty. Gen., for the People.
The petitioner, who is imprisoned to answer to an indictment for manslaughter, now pending in the criminal court of Arapahoe county, prays to be discharged of his imprisonment, under the provisions of the eighth section of the habeas corpus act, (Gen. St. 535,) which is in the words following:
The facts stated in the petition and shown by the records, to bring the case within the provisions of the statute, are that in March, 1881, the petitioner was indicted for murder; that before he was subjected to trial, the law of murder, as to him, was repealed; that at the September term of the district court of Arapahoe county the prisoner was tried upon said indictment for murder, found guilty thereof, and by said court sentenced to the penitentiary for life. That thereafter, petitioner prosecuted a writ of error out of the supreme court to reverse the judgment aforesaid, and that said judgment was, at the April term, 1883, of said supreme court, reversed, upon the ground that owing to the repeal of the law of murder, as aforesaid, the petitioner could be prosecuted and punished for manslaughter only under said indictment, and thereupon the said cause was remanded to the said district court, with directions to proceed according to law. That thereafter, at the April term, 1883, of the said district court, the petitioner was, without any trial whatsoever, sentenced to imprisonment in the penitentiary for the term of eight years for manslaughter, and was imprisoned accordingly; that thereafter, at the December term, 1883, of the supreme court, the petitioner applied to be enlarged from said last-mentioned imprisonment under the habeas corpus act, and thereupon, by the judgment of the said supreme court, it was held that the said last-mentioned judgment of the said district court was void for want of a trial and verdict upon said indictment, but, inasmuch as it appeared that petitioner stood legally indicted of a felony, it was ordered that he be discharged from imprisonment in the penitentiary, and be remanded to the custody of the sheriff of Arapahoe county, unless he should give bail in a sum fixed by this court.
It is further shown that, being so remanded in pursuance of the order of the supreme court as aforesaid, the petitioner was again brought to the bar of said district court, whereupon, afterwards, he interposed his motion to be discharged, for that, although committed for a criminal matter, and not having given bail, he had not been tried on or before the second term of the court having jurisdiction of the offense, such delay not happening on the application of said petitioner, and that, thereupon, he was entitled to be set at liberty in pursuance of the eighth section of the habeas corpus act. That afterwards, on or about the fourth day of May, 1884, the said district court, without determining petitioner's said motion, transmitted the record of the indictment and proceedings aforesaid into the criminal court of said Arapahoe county, a court having concurrent jurisdiction of said offense, and that the motion aforesaid, coming on then to be heard, was denied by said criminal court, wherefore the petitioner applies to be set at liberty upon the present writ of habeas corpus by this court. The present application of the petitioner was first made to me, as one of the judges of this court, at chambers, in vacation, the latter part of June last, and a question then arose touching the jurisdiction of the judges of this court, or either of them, to act upon such applications in vacation, and, having declined to entertain jurisdiction in the matter, the application was renewed to the court upon its convening at the present session. The same question, respecting applications for this and other writs of original jurisdiction, has been frequently raised before us at chambers, and as frequently ruled upon by the judges, but as no record is made of such proceedings in vacation, no written opinion declaring such ruling has ever been filed by the court; and hence, although this question is not a material one in the determination of this application, since it is presented to the court, yet we deem it not out of place to pass upon the question here, in order that it may furnish a referable guide hereafter.
The points, therefore, to be passed upon in order are-- First, may the judges of the supreme court, or either of them, entertain jurisdiction to hear and determine such matters in vacation? Second, does the writ of habeas corpus lie as the proper remedy in this case? Third, ought the petitioner to be discharged or set at liberty upon the state of facts presented? Upon the first question there is very little authority to guide in reaching a conclusion, aside from the language of our state constitution bearing thereon.
Section 2 of article 6 of the constitution declares that 'the supreme court, except as otherwise provided in this constitution, shall have appellate jurisdiction only. * * *' And section 3, following, reads as follows: 'It shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, injunction, and other original and remedial writs, with authority to hear and determine the same.'
This language confers jurisdiction, in respect of remedies under the several writs enumerated, upon the court only by express terms, and not upon the judges thereof, and therefore, if the judges possess any such power, it is by implication from the foregoing language....
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