Jackson v. Olson

• Decision Date: 08 March 1946
• Docket Number: 32012.
• Citation: Jackson v. Olson, 146 Neb. 885, 22 N.W.2d 124 (Neb. 1946)
• Parties: JACKSON v. OLSON.
• Court: Nebraska Supreme Court

22 N.W.2d 124

146 Neb. 885

JACKSON v. OLSON.

No. 32012.

Supreme Court of Nebraska

March 8, 1946

Syllabus by the Court.

1. To release a person from a sentence of imprisonment by habeas corpus, it must appear that the sentence was absolutely void.

2. Habeas corpus will not lie to discharge a person from a sentence of penal servitude where the court imposing the sentence had jurisdiction of the offense, had jurisdiction of the person of the defendant, and the sentence was within the power of the court to impose.

3. Habeas corpus cannot be used as a substitute for a writ of error.

4. Habeas corpus is a collateral and not a direct proceeding when regarded as a means of attack upon a judgment sentencing a defendant.

5. The regularity of the proceedings leading up to a sentence in a criminal case cannot be inquired into on an application for a writ of habeas corpus, that matter being assailable only in a direct proceeding.

6. When the judgment is regular upon its face and was given in an action where the court had jurisdiction of the offense and of the person of the defendant, extrinsic evidence is not admissible to show its invalidity.

7. Except in the case of a fugitive surrendered by a foreign government, there is nothing in the Constitution, treaties or laws of the United States which exempts an offender brought before the courts of a state for an offense against its laws, from trial and punishment, even though brought from another state by unlawful violence, or by abuse of legal process.

8. In re Robinson, 29 Neb. 135, 45 N.W. 267, 8 L.R.A. 398, 26 Am.St.Rep. 378, is overruled.

9. The absence of jurisdiction of the district court will not be presumed, but must affirmatively appear from the face of the record.

10. The right of a defendant, under section 29-1802, R.S.1943 not to be required without his assent, to answer an indictment, until one day shall have elapsed after receiving a copy thereof, may be waived. The failure of the record to show that he made any objection raises the presumption that he waived the right.

11. A constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.

12. Where an information charges the crime of murder in the first degree, murder in the second degree and manslaughter are included in the charge, the degree ordinarily being for the jury; and where the evidence and circumstances of the killing are such that different inferences may properly be drawn therefrom as to the degree, the court should submit the different degrees to the jury for them to draw the inference.

13. The provision of the Constitution of Nebraska, permitting prosecutions for felony by information, does not conflict with the Fourteenth Amendment to the Constitution of the United States.

14. The statute limiting prosecutions for felonies, by its specific terms, does not apply to prosecutions for murder. Sec. 29-110, R.S.1943.

15. The principle of res judicata applies in cases of habeas corpus where there has been a hearing upon the merits in a former action of the same kind, and where, in a second petition filed for a writ of habeas corpus, it affirmatively appears that such petition is based upon the same reasons and facts and does not contain a new state of facts different from that which existed at the time the first judgment was rendered.

16. The final adjudication in a habeas corpus proceeding is conclusive in the matters there determined, as against a subsequent application.

17. Where several applications for a writ of habeas corpus, all on similar grounds, have been denied by the courts of this state, a subsequent application on essentially the same grounds constitutes an abusive use of the writ and justifies a denial of it.

James E. Jackson, pro se.

Walter R. Johnson, Atty. Gen., H. Emerson Kokjer, Deputy Atty. Gen., and Carl H. Peterson, Asst. Atty. Gen., for appellee.

Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL and WENKE, JJ.

SIMMONS Chief Justice.

Petitioner here filed his petition in the district court for Lancaster County for a writ of habeas corpus, naming the Warden of the Nebraska State Penitentiary as respondent. The trial court examined the petition and found that it did not state facts sufficient to constitute a cause of action against the respondent or to afford petitioner relief. It also took judicial notice of its own records and found that three previous petitions had been filed by petitioner alleging substantially the same facts and seeking the same relief. The trial court further found that in all three actions the petitions had been dismissed, the writs denied, and the judgments subsequently affirmed by this court; and that the questions had been adjudicated and determined. The trial court denied the writ and dismissed the petition. Petitioner appeals. We affirm the judgment of the trial court.

Petitioner's application consists of allegations and conclusions of both fact and law. To the application he attaches an exhibit and, by reference, incorporates it in his petition. This exhibit is a copy of a petition for appeal filed in the United States Circuit Court of Appeals for the Eighth Circuit, in which action he unsuccessfully sought a writ of habeas corpus. To this petition (exhibit) are attached copies of pleadings filed in the District Court of the United States for the District of Nebraska; a petition directed to a judge of the Eighth Circuit containing a copy of a part of the journal entry of the district court for Sheridan County, Nebraska; a transcript of certain proceedings in the county court of Sheridan County, Nebraska, and of proceedings in the district court for Sheridan County, Nebraska; likewise, a copy of a letter from an attorney to the petitioner and a copy of an affidavit by a former county attorney of Sheridan County.

Giving petitioner the full benefit of a liberal construction of this pleading and going to all the matters found within the four corners of the application and attached exhibits, we gather that petitioner undertook to allege the following factual situation as a basis for the issuance of the writ.

On April 3, 1920, petitioner was a resident of Antioch in Sheridan County, Nebraska, living with one Florence Feagins, his common-law wife; that on that day she, while under the influence of liquor, threatened petitioner's life with a revolver; that in a scuffle for the possession of the revolver it was discharged, a bullet entering the body of Florence Feagins and causing her death; that the petitioner notified the county officials, who came and examined the body; that a coroner's inquest was held resulting in a verdict that '* * * Florence Feagins came to her death from a gun shot fired by one Jack Jackson * * *'; and that on April 7, 1920, the petitioner appeared before the county attorney for Sheridan County and was told that a prosecution would not be instituted.

Petitioner thereafter traveled a great deal and finally located in the state of California. On October 7, 1934, petitioner was arrested by officials in California and placed in jail on information from the officials of Sheridan County that he was wanted for the murder of Florence Feagins. On October 15, 1934, a complaint was filed in the county court of Sheridan County charging that petitioner feloniously, maliciously, purposely, and of his deliberate and premeditated malice shot Florence Feagins with a revolver, and that as a result she died and defendant 'thus committed murder in the first degree.' On the same day a warrant was issued for the arrest of petitioner, the return reciting that he could not be found within the jurisdiction of the court.

On November 2, 1934, the then county attorney for Sheridan County and a deputy sheriff of that county 'illegally, unlawfully, without jurisdiction or authority of law arrested' petitioner in California, placed him in irons and transported him to Sheridan County, where he was placed in jail under the complaint there filed. Attached to the pleadings carried as an exhibit is a copy of an affidavit of the then county attorney who filed the murder complaint, reciting that subsequent to the filing of the complaint and the issuance of the warrant, he as county attorney, made application for a requisition to the Governor of Nebraska, who issued the same to the Governor of California and who appointed the deputy sheriff as the agent of this state to receive and return petitioner to Nebraska; that thereafter the attorney and the deputy went to California and presented the requisition to the Governor of that state, who granted the extradition papers; that thereafter with the extradition papers in their possession they went to the officials who held petitioner in custody, interviewed petitioner, advised him that they had proper extradition papers entitling them to return him to this state; that the papers were exhibited to petitioner and he was advised that he could, if he desired, resist extradition; that petitioner voluntarily agreed to and did return with them voluntarily to the state of Nebraska. Petitioner charges that he believes the affidavit just mentioned to be a forgery, 'manufactured,' and the result of perjury.

On November 9, 1934, petitioner appeared in the county court of Sheridan County in person and represented by counsel, the complaint was read to him and he pleaded not guilty. It then was agreed that a date for preliminary hearing would be agreed upon by the parties.

On November 28, 1934, petitioner, in court in person and with counsel moved for additional time before the preliminary hearing was held. It was granted. Again on December 19, 1934, petitioner by his c...