In re McDonald

• Decision Date: 13 May 1893
• Citation: 33 P. 18,4 Wyo. 150
• Parties: IN RE McDONALD
• Court: Wyoming Supreme Court

33 P. 18

4 Wyo. 150

IN RE McDONALD

Supreme Court of Wyoming

May 13, 1893

Petition for writ filed April 6, 1893.

John McDonald was confined in the county jail of Sweetwater County, under conviction and sentence by the district court for criminal libel. He applied to the -supreme court for release upon habeas corpus. The initial writ was granted ordering the sheriff to appear and show by what authority the petitioner was held in custody, and to show cause, if any why the prayer of petitioner should not be granted. The case was heard on demurrer to the petition, and the petition was denied. The facts are fully stated in the opinion.

Petition dismissed.

E. J. Churchill (by appointment of court), for petitioner.

Want of jurisdiction is a proper ground for habeas corpus. (Ex parte Millington, 24 Kan. 214; Martin's case, 1 Bright Dig., 1240.) The statute fixed the time for the commencement of the terms of the district court in each county. That, of itself, limits the term of court in each county--there is but one court and one judge in a district. (Ex parte Millington, supra.) The district court of Sweetwater County could not lawfully adjourn to a day beyond an intervening term in Carbon County in the same district. (Gregg v. Cook, Peck (Tenn.), 82; Archer v. Ross, 2 Scan., 303; Cooper v. Am. Ins. Co., 3 Colo., 318; Grable v. State, 2 Greene, 559; Davis v. Fish, 1 G. Greene, 406; Ex parte Lilly, 7 S.C. 374; Smith v. Chichester, 1 Cal. 409; Northwood v. Canfield, 34 Cal. 329; Bates v. Gage, 40 Cal. 183; Bank v. Withers, 6 Wheat., 106; State v. Montgomery, 8 Kan. 358.) Adjournments of courts to a distant day are highly impolitic, and ought not, except for very weighty and special reasons, to take place. (Harris v. Gest, 4 O. St., 470; Samuels v. State, 3 Mo. 78; Servis v. Dills, 17 Mo. 69; State v. Montgomery, supra; Carland v. Custer Co., 5 Mont. 599.) Consent cannot confer jurisdiction. (Molandin v. C. C. Ry. Co., 3 Colo., 173; Keene v. Whittaker, 13 Curtis, 248; Jewitt v. Hodgdon, 2 Greene (Mo), 335.) The court was without jurisdiction on account of fatal defects in the information. Material defects on the face of the information may be inquired into in a habeas corpus proceeding. (Church, 245; In re Conyell, 22 Cal. 178; Keayney's case, 55 Cal. 212.) Such defects go to the jurisdiction. (Ex parte Boland, 1 Tex. App., 159; Freeman on Judg., Sec. 678; Ex parte Liebold, 100 U.S. 376.) In repealing a statute, it is not enough to refer to original act by number of chapter of published laws. (People v. Hills, 35 N.Y. 449; People v. Briggs, 50 N.Y. 553; People v. Fleming, 7 Cal. 231; Pennington v. Woolfalk, 79 Ky. 13.) The crimes act of 1890 failed to define libel, the intent probably being to revert to the common law definition. Sec. 979, Rev. Stat. Wyo. did define it. This section was repealed in 1890 by mere reference to section, not to title, chapter and subdivision. So much of the former statute which is not repugnant to the laws of 1890 must stand, and the crime should have been so charged as to make out a statutory offense. The information, however, is not good if it intended to charge libel as at common law. The letter complained of was not libelous. The innuendo states a libel, but that cannot be used to put upon the defendant's words a meaning they will not bear. If, rejecting the innuendo, the words are not actionable per se, judgment must be arrested. (James v. Rutlech, 4 Rep., 17; State v. Mott, 45 N. J. L., 494; Barham v. Neehersole, Yelv., 21; Barrett v. Long, 16 Eng. L. & Eq., 1; Patterson v. Wilkinson, 55 Me. 42; Gainsford v. Blatchford, 7 Price, 544.) The following cases distinguish between libelous statements and the writing in the case at bar. (Cochran v. Melendy, 59 Wis. 207; Bowe v. Rogers, 50 Wis. 598; Mallory v. Pioneer Press Co., 34 Minn. 521; Hemphill v. Halley, 4 Minn. 233; Bain v. Myrick, 88 Ind. 137; Crocker v. Hoadley, 102 Ind. 416.) See 13 Am. & Eng. Ency. of Law, p. 333, et seq. Whether the language constitutes libel is a question for the court and not the jury. (13 Am. & Eng. Ency. of Law, p. 467.) It was necessary to allege malicious intent to injure, villify, or destroy the reputation of the one about whom the letter was written, knowledge of the falsity by the writer, and transmission of the letter to whom it was addressed. (Heard's Cr. Law, p. 559; Arch. Cr. Pl., 895; Whart. Prec., p. 930.) The sentence was excessive.

Charles N. Potter, Attorney General, for the sheriff.

GROESBECK, CHIEF JUSTICE. CONAWAY and CLARK, JJ. concur.

OPINION

GROESBECK, CHIEF JUSTICE.

This proceeding is submitted upon the petition for the writ as amended by consent and by leave of court, and the demurrer to the petition on behalf of the defendant and respondent, the sheriff of Sweetwater County. The initial writ was granted by this court, and the application disclosing that the petitioner is without means to employ counsel to represent him, Edmund J. Churchill, Esq., of the Cheyenne bar was appointed to act for the petitioner herein. The brief on the application shows much labor and care in its preparation and has been carefully considered. The petition and application for the writ relies chiefly upon errors alleged to have been made by the committing magistrate before the trial, particularly in his omission in forwarding the transcript of his record to the trial court within the time specified by statute. These matters are of no importance and were abandoned by counsel for the petitioner upon the hearing. The matters disclosed by the record which we are asked to consider will be disposed of in the following order:

1. The petitioner was tried, convicted and sentenced at an adjourned term of the district court for Sweetwater County, which began on the fourth Monday of September, A. D. 1891. This term was apparently adjourned over a term or a portion of a term of the district court in the same judicial district for Carbon County, which began on the second Monday in October following. The mittimus containing a copy of the judgment shows that the petitioner was sentenced at the adjourned term for Sweetwater County on the 7th day of December, 1891. The question involved here was presented to this court and was discussed at length in the case of Stirling v. Wagner, supra, and although the membership of this court has changed since that decision was rendered, which may account for the presentation of the question anew, we adhere to the ruling in that case, and hold such an adjournment over an intervening term or portion of a term of the district court for another county in the same district, valid. It was in accordance with the universal practice of district courts in this jurisdiction to so adjourn over a term or portion of a term. It was deemed unnecessary and unwise to disturb this practice, which had received such sanction of these courts, as such action on our part would result in disturbing and annulling too many judgments. Besides, there never was any statute in this jurisdiction prescribing the duration of any term of a district court, the length of its sessions, or when it should adjourn; and in the absence of some positive law to the contrary, a district court, being a court of general and superior jurisdiction, has power to adjourn to a distant day, even over an intervening term or portion of a term held in another county of the same district, during the interval of adjournment.

2. It is urged that the information does not state an offense against the statute. We think the information is sufficient, as it employs the exact language of the statute in its charging part. In Re Wight Petitioner, 134 U.S. 136, 148, 33 L.Ed. 865, 10 S.Ct. 487; Cuddy, Petitioner, 131 Id., 280. Omitting the caption to the information it reads as follows: "That John Mac-Donald, late of the county aforesaid, on the 8th day of February, A. D. 1891, at and in the county aforesaid, did unlawfully and maliciously make, compose, dictate and write to be published, and did unlawfully and maliciously procure to be made, composed, dictated and published, and did unlawfully and maliciously publish and knowingly and unlawfully aid in publishing and communicating a certain false and malicious libel of and concerning one Walter L. Powell, of the tenor following:

"Green River, Wyo. Feb. 5th, 1891.

"To General Manager H. H. Clark, U. P. R. R.

"Sir, --The robberies of company property (from sealed cars) are as brisk as ever. The thieves are waxing wealthy and bolder. As an instance last Saturday night (the 31st ult.), about 6 o'clock, Martin Cleary, an ex-employe, threw a load of coal from a coal car, and in about an hour brought around a team, loaded the coal, and took it away. Arrest the thieves, they don't care; they can get out of jail here when they want to. Referring to the last escape of prisoners, one of whom was held for robbery from the company, the sheriff now admits that he turned them out of the cage in the morning. There is no mystery about their escape. One of the receivers (ex-Constable Powell) was entrusted with a key to the jail, but even had he opened the outer doors the prisoners could not have got away if the sheriff had not turned them out of the cage. The sheriff went to Rock Springs early that day and away until night. Charley Wilson, engineer, now in hospital at Ogden, knows a good deal about the roberries and robbers. He had charge of the switch engine here. Nemo."

Meaning then and there in said writing hereinbefore set forth that the said ex-Constable Powell, meaning the said Walter L. Powell, did then and there commit the crime of receiving stolen goods, knowing the same to have been stolen, and also in said writing then and there meaning that said ex-Constable Powell, meaning the said Walter L. Powell, did then and...