Kingen v. Kelley

CourtWyoming Supreme Court
Writing for the CourtCONAWAY, J.
Citation28 P. 36,3 Wyo. 566
Decision Date17 November 1891
PartiesKINGEN v. KELLEY, Sheriff

28 P. 36

3 Wyo. 566

KINGEN
v.
KELLEY, Sheriff

Supreme Court of Wyoming

November 17, 1891


Petition for habeas corpus by William Kingen. Denied.

Petitioner remanded.

Henry St. Raynor, for petitioner.

Atty. Gen. Potter and J. M. Davidson, for respondent.

CONAWAY, J. GROESBECK, C. J., and MERRELL, J., concur.

OPINION

[3 Wyo. 567] CONAWAY, J.

Petitioner, as appears from the pleadings and evidence on file in this cause, was indicted for, tried, and found guilty of, the crime of grand larceny at the November, A. D. 1890, term of the district court for Laramie county. The judgment and sentence of said court in pursuance of such finding was afterwards rendered, and a mittimus issued to respondent, which it is claimed is in accordance with such judgment and sentence. Respondent admits that he restrains petitioner of his liberty in the county jail of Laramie county, in the state of Wyoming, but alleges that such restraint is by virtue of said proceedings above recited and said resulting mittimus, and is lawful. Petitioner claims that such restraint is unlawful, and that petitioner is entitled to his discharge for several reasons.

We understood it to be admitted in the oral argument that only jurisdictional questions can be raised in this proceeding. Whether so admitted or not, such is clearly the law. Lack of jurisdiction of the subject-matter, jurisdiction of the person, or jurisdiction to render the particular judgment assailed, seems to include all cases which render a judgment void or subject to collateral attack in habeas corpus. There is an apparent exception to this rule in some special cases, provided for by section 753 of the Revised Statutes of the United States, but this section has no application here. Jurisdiction of the person may be waived. Neither jurisdiction of the subject-matter nor jurisdiction to render the judgment can be conferred by waiver. For illustration, a party, though not arrested or subject to arrest, or having a good plea in abatement if arrested, may nevertheless voluntarily go to trial in a court of a justice of the peace, and thus submit himself to that jurisdiction. He may then be tried by the justice on any charge of crime which the justice has jurisdiction to try, and be adjudged, on conviction, to suffer any penalty fixed by law for the punishment of such crime which the justice has jurisdiction to impose. But, although the party thus submits his person to the jurisdiction of the [3 Wyo. 568] justice of the peace, that court may not try him for a felony, or sentence him to be imprisoned in the penitentiary, or to be hanged.

The first reason assigned by petitioner for holding the judgment of the court below to be void, and for his discharge, is that he was arrested in Nebraska, and forcibly and against his will abducted from that state into the state of Wyoming, by a deputy-sheriff of Laramie county, Wyo., acting by the advice of the prosecuting attorney of said county, assisted by 10 other persons, on November 7, 1890, these persons all being armed with rifles and revolvers. This is not denied by respondent, and it appears from the pleadings and evidence on file that it is substantially true, and that this abduction was followed by the arrest of petitioner in Wyoming on November 9, 1890, by another officer, by virtue of a warrant issued by a justice of the peace of said county, upon complaint in due form, charging petitioner with grand larceny. Thereupon he was [28 P. 37] by this last-mentioned officer delivered to respondent, the sheriff and keeper of the jail of said county, who has ever since detained him in said jail. On November 22, 1890, the grand jury presented to the district court of said county an indictment, charging petitioner with grand larceny. On the 3d day of December following he was arraigned on said indictment, to which he pleaded not guilty, and went to trial. He interposed no plea to the jurisdiction of the court at this time. He first seeks to take advantage of his forcible abduction from Nebraska to Wyoming by asking of the trial court the following instruction to the jury: "Ninth. The court instructs you that, in order to give this court jurisdiction to place the defendant upon his trial under a criminal charge, it is necessary that he be arrested under a legal process, in conformity to the laws of the state of Wyoming. Therefore, if you find from the evidence that the defendant was arrested by William C. Lykins, in the state of Nebraska, without having obtained a requisition for his extradition from said state, and forcibly and against the will of him, the said defendant, by the said William C. Lykins, as deputy-sheriff of Laramie county, Wyo., without any warrant for his arrest, abducted the said defendant from the said state of Nebraska, then, and in that case, the court instructs you that this court has not acquired legal jurisdiction to try him under [3 Wyo. 569] the indictment, and it is your duty to acquit him." Leaving out of view the unintelligible portion of this proposed instruction, it is sufficiently apparent that it was intended to raise the question of jurisdiction of the person. By no stretch of the imagination can it be conceived that the arrest of a defendant in a criminal action without a legal warrant, or his abduction by force and against his will from a neighboring state, could affect the general jurisdiction of the district court to try cases of grand larceny, or to pronounce judgment on convictions therefor, imposing the legal penalties. The effect of this instruction, if it had been given to the jury by the court as the law of the case, might have been to secure a verdict of not guilty by the jury without passing upon the merits of the case at all. Then that verdict would stand as a perpetual plea in bar to another trial, and the case never could be tried upon its merits. This is the reason of the rules requiring pleas in the nature of pleas in abatement to be filed at certain stages of the proceedings or not at all. It may well be doubted whether the failure to interpose this objection to the jurisdiction of the person of petitioner upon arraignment and before pleading not guilty, and entering upon the trial, was not a waiver of the objection. But we prefer to discuss and decide this question upon broader grounds. The cause has been a subject of correspondence between the executive departments of the states of Wyoming and Nebraska. It has been spoken of as within the reach of those principles of comity which ought always to exist between these neighboring states. For this reason, if for no other, we would avoid placing the consideration or decision of this branch of this cause upon grounds that might appear at all technical, or as not reaching the merits of the controversy. Then, instead of asking, has petitioner waived his objection to the jurisdiction? let us ask, had he any valid objection available at any time in the progress of the cause? It is admitted to be the law that a fugitive from justice may be prosecuted in the state from which he fled, regardless of the means employed to secure his return. But it is claimed that when the officers of the state wrongfully abduct him from his place of asylum, and return him, the rule is different. The following cases are cited to this point: In re Allen, 13 Blatchf. 271, 1 F. Cas. 436; Lutten v. Benin, 11 Mod. 50; Ilsley v. Nichols, 29 Mass. 270. [3 Wyo. 570] These are all civil cases, and were decided when arrests for debt were frequent. Neither do they make any distinction between wrongful acts of officers and wrongful acts of interested parties. It is the right of a party defendant in a civil action to be sued in the forum of his domicile, though he may be sued in a personal action in a foreign forum, if found there, if he went there voluntarily. If his presence there was procured by fraud or force, it does not subject him to a civil suit, or to the service of any civil process there. The cases cited have no reference to criminal actions.

No right of one accused of crime is violated by bringing him to trial in the jurisdiction where he is charged as having committed the crime. He can be brought to trial nowhere else. One other case is cited to the point under discussion, --the only one in any degree analogous to the case at bar. It is State v. Jackson, 36 F. 258, decided in the United States circuit court at Chattanooga, Tenn. Jackson was a citizen of the state of Illinois, and had never been in Tennessee. Consequently, he had never fled therefrom. This much was conceded. It was further found by the court that Jackson was illegally, and in violation of the constitution and laws of the United States, extradited from the state of Illinois, and brought within the jurisdiction of the courts of Tennessee by the respondents in said cause and by the state of Tennessee, its officers and agents, and was at the time of the hearing, in violation of the constitution and laws of the United States, detained and held in custody. L. P. Elliott, who illegally abducted Jackson, was the duly accredited agent of the state of Tennessee. Jackson was discharged. In the case at bar, it appears from the pleadings and evidence, that petitioner, although a citizen of the state of Nebraska, had recently before his abduction been in Wyoming, had committed a felony there, and had fled to Nebraska. No agent or officer of the state of Wyoming had been concerned in his abduction, or, so far as appears, had any knowledge of it. The cases cited do not establish the exception to the rule of law that courts will not regard the means employed to bring a fugitive from justice within the jurisdiction where he committed the crime. Neither does the case at bar fall within the exception as stated. The fact that a deputy-sheriff was of the party effecting the [28 P. 38] irregular and illegal abduction does not [3 Wyo. 571] constitute the case an exception to the rule. Brookin v....

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26 practice notes
  • Oyler v. State, No. 5296
    • United States
    • United States State Supreme Court of Wyoming
    • 29 Octubre 1980
    ...said that a deputy-sheriff who effects an irregular and illegal abduction does so in his role as a private individual. (Kingen v. Kelley, 3 Wyo. 566, 28 P. 36 (1891).) Presumably, acting as a private individual he would be liable. (Cf. Ellis v. Wyoming Game & Fish Comm'n, 74 Wyo. 226, 286 P......
  • Ex Parte Ponzi, (No. 10567.)
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 27 Octubre 1926
    ...v. Georgia, 148 U. S. 543, 13 S. Ct. 687, 37 L. Ed. 549; Mahon v. Justice, 127 U. S. 700, 8 S. Ct. 1204, 32 L. Ed. 283; Kingen v. Kelley, 3 Wyo. 566, 28 P. 36, 15 L. R. A. 177; Baker v. State, 88 Wis. 147, 59 N. W. It is argued that the precedents in support of the right of a state to proce......
  • Hovey v. Sheffner
    • United States
    • United States State Supreme Court of Wyoming
    • 20 Enero 1908
    ...for the review and correction of errors is an elementary rule, and has many times been asserted by this court. (Kingen v. Kelley, 3 Wyo. 566, 28 P. 36; In re McDonald, 4 Wyo. 150, 33 P. 18; Miskimins v. Shaver, 8 Wyo. 392, 58 P. 411; Fisher v. McDaniel, 9 Wyo. 457, 64 P. 1056; Younger v. He......
  • Uram v. Roach, 1898
    • United States
    • United States State Supreme Court of Wyoming
    • 23 Noviembre 1934
    ...without a hearing. The transfer of prisoners from one prison to another has long been considered an executive act. See, Kingen v. Kelley, 3 Wyo. 566, 586, 28 P. 36, 15 L. R. A. 177. Confinement in either the penitentiary or the industrial institute was affixed by statute as a penalty for th......
  • Request a trial to view additional results
26 cases
  • Oyler v. State, No. 5296
    • United States
    • United States State Supreme Court of Wyoming
    • 29 Octubre 1980
    ...said that a deputy-sheriff who effects an irregular and illegal abduction does so in his role as a private individual. (Kingen v. Kelley, 3 Wyo. 566, 28 P. 36 (1891).) Presumably, acting as a private individual he would be liable. (Cf. Ellis v. Wyoming Game & Fish Comm'n, 74 Wyo. 226, 286 P......
  • Ex Parte Ponzi, (No. 10567.)
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 27 Octubre 1926
    ...v. Georgia, 148 U. S. 543, 13 S. Ct. 687, 37 L. Ed. 549; Mahon v. Justice, 127 U. S. 700, 8 S. Ct. 1204, 32 L. Ed. 283; Kingen v. Kelley, 3 Wyo. 566, 28 P. 36, 15 L. R. A. 177; Baker v. State, 88 Wis. 147, 59 N. W. It is argued that the precedents in support of the right of a state to proce......
  • Hovey v. Sheffner
    • United States
    • United States State Supreme Court of Wyoming
    • 20 Enero 1908
    ...for the review and correction of errors is an elementary rule, and has many times been asserted by this court. (Kingen v. Kelley, 3 Wyo. 566, 28 P. 36; In re McDonald, 4 Wyo. 150, 33 P. 18; Miskimins v. Shaver, 8 Wyo. 392, 58 P. 411; Fisher v. McDaniel, 9 Wyo. 457, 64 P. 1056; Younger v. He......
  • Uram v. Roach, 1898
    • United States
    • United States State Supreme Court of Wyoming
    • 23 Noviembre 1934
    ...without a hearing. The transfer of prisoners from one prison to another has long been considered an executive act. See, Kingen v. Kelley, 3 Wyo. 566, 586, 28 P. 36, 15 L. R. A. 177. Confinement in either the penitentiary or the industrial institute was affixed by statute as a penalty for th......
  • Request a trial to view additional results

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