In re Moebus

• Decision Date: 03 October 1905
• Citation: 62 A. 170,73 N.H. 350
• Parties: In re MOEBUS.
• Court: New Hampshire Supreme Court

62 A. 170

73 N.H. 350

In re MOEBUS.

Supreme Court of New Hampshire.

Oct. 3, 1905.

Petition for writ of habeas corpus by Henry E. Moebus, praying for his discharge from the state prison. Denied.

Petition for a writ of habeas corpus, filed September 21, 1905. The petitioner alleges, in substance, that he was brought into this jurisdiction from the state of New York, of which he is a resident, upon a requisition issued by the Governor of this state, and was committed to the state prison, where he has been held as a convict since November 8, 1900; that he was committed without due formality of law and is illegally detained; and that he has not been informed "by a competent court" why he is thus deprived of his liberty. The prayer is that the warden of the state prison may be ordered to bring the petitioner before the court, for the purpose of examining the question whether he was lawfully entitled to a hearing before a competent court within this state prior to his commitment to prison, and that the petitioner may be liberated if the court should find that he was so entitled. The state claimed that the petitioner is Mark Shinborn, who was committed to the state prison in 1805 for a term of 10 years and escaped after serving a few months of the sentence. The petitioner denied that he is Shinborn, but expressly declined to try the question of his identity, and based his right to a discharge upon grounds considered in the opinion.

Henry E. Moebus, pro se. Edwin G. Eastman, Atty. Gen., for the State.

PARSONS, C. J. The petitioner is now confined in the state prison under a decree of the court sentencing one Mark Shinborn to 10 years' imprisonment. If the petitioner is Moebus and not Shinborn, he is illegally confined and is entitled to be discharged. Unless the question of identity has been determined against him by some court with jurisdiction of the question, in a proceeding to which he and the state were parties, so that he is estopped by legal adjudication to now contend that he is not Shinborn, the petitioner is entitled to process which will enable him to try that question, and to a discharge, if the fact be found in his favor. But the petitioner expressly states that he does not desire to try this question, and asserts his purpose to withdraw his petition if the court permits such trial. In this situation, the state asserting that the petitioner is Shinborn and the petitioner refusing to join issue on that assertion, it must be taken for the purposes of the case that the petitioner is Shinborn. Whether this court has original jurisdiction to entertain a petition for a writ of habeas corpus (Pub. St. c. 239, §§ 3, 18; Laws 1901, p. 503. c. 78, §§ 2, 5, 7) is a question of grave doubt, and one which we are not inclined to pass upon except when necessarily raised and fully argued. If the application were made to the superior court, the two legal questions which the petitioner presents might be readily raised and transferred.

It also appears by the petitioner's brief that application has at some time been made to the superior court, and a ruling had upon one, at least, of the questions now sought to be presented. Failure to except to such ruling would under the rules prevent the petitioner from raising the question here, but the rule may be waived when justice requires; and to send the petitioner to the superior court merely for the purpose of presenting the questions in a formal manner is not usually considered necessary, when the questions are so presented that they can be fairly considered. Hutchinson v. Railway, 73 N. H. 271, 277, 60 Atl. 1011. This court has jurisdiction to determine the legal questions raised. The manner of their presentation is one of form merely. If these questions are determined favorably to the petitioner, the question of jurisdiction to issue the writ will be presented. But the answer to these questions renders it unnecessary to consider whether this court should itself issue the writ or send the petitioner to the superior court.

The petitioner claims that his present detention is illegal because, after he was brought into this state upon the claim that be was an escaped convict under sentence to the state prison, he was not tried upon the issue whether he was the convict the...