In re Terrill

• Decision Date: 07 October 1893
• Citation: 34 P. 457,52 Kan. 29
• Parties: In the matter of the Petition of IRA N. TERRILL for a Writ of Habeas Corpus
• Court: Kansas Supreme Court

34 P. 457

52 Kan. 29

In the matter of the Petition of IRA N. TERRILL for a Writ of Habeas Corpus

Supreme Court of Kansas

October 7, 1893

Original Proceeding in Habeas Corpus.

PETITION by Terrill for release from custody. The facts appear in the opinion, filed October 7, 1893.

C. R Buckner, for petitioner.

Sterling P. King, and Harris Huston, for respondent.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

An indictment was returned by the grand jury of Payne county Oklahoma territory, charging Ira N. Terrill with the offense of murder, and at the trial, held September 26, 1892, he was convicted of the offense charged, and the punishment fixed by the jury was imprisonment in the penitentiary at hard labor for life. Subsequently the sentence of the court was pronounced, adjudging that Terrill be confined in the territorial penitentiary at Lansing, Kan., for the term of his natural life, where he was conveyed, and is now held in custody by the warden of that prison. He seeks release here by a proceeding in habeas corpus, and in his application he alleges several grounds why his imprisonment is illegal, only one of which it will be necessary to notice. He asserts that the trial was had and the judgment rendered at a time not authorized by law; that the court was then without jurisdiction to take any proceedings against him, and hence the sentence and judgment of the court are absolutely void.

In pursuance of law, the terms of the district courts of Oklahoma were fixed by order of the supreme court, and the terms are required to be held in the county of Payne commencing on the third Tuesday in April and the first Tuesday of November of each year. The petitioner was tried in 1892, and during the time within which the April term might have been held; but it appears that the judge of that court was not present at the time and place when the April term of court should have begun, nor was he present in person for several days afterward. The court should have been opened on April 19, but the judge did not appear until the 26th of that month, when he opened and held court until April 30, 1892. Several adjournments were made by the court, one of which was to June 14, 1892, but the judge of the court again failed to appear, when the clerk attempted to adjourn the court until August 16, 1892. At the latter date the judge appeared in person and held court from time to time, with intervening adjournments, until September 26, 1892, when the trial and conviction of the petitioner occurred.

The failure of the judge to appear and open court upon the day appointed resulted in the loss of the term, and proceedings had by a court at a time not authorized by law are absolutely void. There was then no statute of Oklahoma providing for the adjournment of the court by the clerk or other of its officers in case of the nonattendance of the judge. A statute since enacted, and which went into effect in August of the present year, provides that, if the judge of a court fails to attend at the time and place appointed for holding his court the sheriff shall have power to adjourn it from day to day until the judge does attend or a judge pro tem. is selected; and if the judge is not present and a judge pro tem. is not selected within two days after the first day of the term the court stands adjourned for the entire term. (Statutes Okl., P 4626.) There is ample power in a court which has been regularly convened to adjourn to a future time, provided it be not beyond the term; but, in the absence of a statute authorizing it, the clerk or other ministerial officer cannot act for the judge in either opening or adjourning court. The clerk is a ministerial officer, and without statutory authority can exercise no judicial function. The opening, holding and adjournment of court are the exercise of judicial power, to be performed by the court. To perform the functions of a court, the presence of the officers constituting the court is necessary, and they must be present at the time and place appointed by law. A "court" is defined by Bacon to be "an incorporeal political being, which requires for its existence the presence of its judges, or a competent number of them, and a clerk or prothonotary, at or during which, and at a place where it is, by law, authorized to be held, and the performance of some public act indicative of the design to perform the functions of a court." (Bac. Abr., title "Court," A; Hawes, Jur., § 27.) "To give existence to a court, then, its officers and the time and place of holding it must be such as are prescribed by law." (Hobart v. Hobart, 45 Iowa 501.) There being no...