In re Mahany

• Decision Date: 03 March 1902
• Citation: 68 P. 235,29 Colo. 442
• Parties: In re MAHANY.
• Court: Colorado Supreme Court

68 P. 235

29 Colo. 442

In re MAHANY.

Supreme Court of Colorado

March 3, 1902

Original application of Frank A. Mahany for habeas corpus. Dismissed.

Brown & Nourse, for petitioner.

C. C Post, Atty. Gen., opposed.

PER CURIAM.

Petitioner is confined in the county jail at Gunnison, awaiting trial on a charge of murder. He claims to be illegally restrained of his liberty by the sheriff of that county. To test this question, he has applied for a writ of habeas corpus, basing his application on the following facts stated in his petition: At the September term, last, of the district court of Gunnison county, he was tried for the offense charged, and a verdict rendered as follows, after entitling the cause 'We, the jury in the above-entitled cause, do find the defendant guilty of manslaughter, and do recommend him to the mercy of the court.' This verdict was received, and the jury discharged from the further consideration of the case. Thereafter the petitioner announced in open court that he was ready to receive sentence and suffer the punishment to be imposed under the verdict as for the crime of involuntary manslaughter. The court declined to pass sentence, and, over the objection of petitioner, ordered that the verdict be set aside, and a new trial had. Thereupon petitioner moved the court that he be discharged from further custody for the crime charged, for the reason that he had been put upon his trial, and had once been placed in jeopardy for each grade of the offense stated in the information. This motion was denied, and petitioner remanded to the county jail to await another trial.

On these facts, which are not controverted, counsel for petitioner claim that he has once been in jeopardy for the offense for which he is now awaiting trial, and therefore cannot be tried again therefor. The attorney general opposes the application, and, as one of the reasons why the writ should not issue, contends that the question of former jeopardy cannot be raised in habeas corpus proceedings. Counsel for petitioner recognize at the outset that, if the facts upon which the application is based do not appear from the record of the proceedings of the trial court in the case the plea of former jeopardy should be submitted to the latter tribunal for determination; but where, as in this instance all the facts are admitted or shown by the record, they contend he is entitled to a release upon a writ of habeas corpus. In support of this proposition they urge that in such circumstances, where petitioner has already moved the trial court for a discharge upon the ground now urged in support of his application, he should not be subjected to another trial or the formality of submitting to a jury undisputed questions of fact, the force and effect of which are entirely a question of law. These matters do not change the rule with respect to questions which can be inquired into on applications of this character. It has uniformly been held by this court that in habeas corpus proceedings only jurisdictional questions can be reviewed. In re Packer, 18 Colo. 525, 33 P. 578; Ex parte Farnham, 3 Colo. 545; People v. District Court Clerk, 22 Colo. 422, 44 P.

506; In re Tyson, 21 Colo. 78, 39 P. 1093. It is immaterial therefore, how the facts are presented, or what the stage of the proceedings may be out of which the application grew, for the question upon...