Martin v. District Court of Second Judicial Dist. of Colorado

• Citation: 86 P. 82, 37 Colo. 110
• Case Date: May 07, 1906
• Court: Supreme Court of Colorado

86 P. 82

37 Colo. 110

MARTIN, Warden,
v.
DISTRICT COURT OF SECOND JUDICIAL DIST. OF COLORADO et al.

Supreme Court of Colorado

May 7, 1906

Original application for writ of certiorari by E. H. Martin, as warden of the State Penitentiary, against the district court of the Second judicial district of Colorado and others. Writ granted. [86 P. 83]

[37 Colo. 111] Henry A. Lindsley, Geo. Allan Smith, N.C. Miller, Atty. Gen., and I. B. Melville, Asst. Atty. Gen., for petitioner.

CAMPBELL, J.

In the district court of Otero county, William Moran was informed against, tried, and convicted of [37 Colo. 112] the crime of robbery, and in November, 1899, sentenced to confinement in the State Penitentiary for not less than 12 nor more than 14 years. The indictment charged that the crime was committed July 8th of that year. Moran was taken to the State Penitentiary, and while serving his sentence filed in July, 1902, in the district court of the Second judicial district, a petition for a writ of habeas corpus to obtain his release, and as the sole ground for its allowance alleged that the judgment under which he was sentenced was absolutely void, because not within the power of the court to pronounce. The judgment seems to have been based upon the indeterminate sentence act of 1899, which, it is said, did not become a law until after the crime was committed. The penalty for robbery at the time the offense as charged in the indictment was committed was from 3 to 14 years' confinement in the penitentiary. The district court of he Second judicial district, where the petition for habeas corpus was pending, discharged the prisoner, apparently for the reason relied upon by him that the judgment under which he was restrained of his liberty was absolutely void as rendered under the wrong law. Though the district court's hasty and improper action has enabled the prisoner to withdraw himself from the state, the Attorney General and district attorney are seeking a review of its judgment to the end that the practice in habeas corpus may be established.

We consider first the remedy for reviewing the order of discharge. It would seem that in England the courts do not say whether a proceeding by habeas corpus is a civil or criminal one, but the Supreme Court of the United States considers it a civil proceeding or action to enforce a civil right, any by some courts it is called a 'civil cause' or 'civil [37 Colo. 113] action.' Church on Habeas Corpus (2d Ed.) § 88; Ex parte Tom Tong, 108 U.S. 556, 2 S.Ct. 871, 27 L.Ed. 826. Other cases deem the proceeding a criminal action. The authorities are collated in 15 Am. & Eng. Enc. Law (2d Ed.) 157. The distinction becomes important with reference to a review of a judgment remanding or discharging the petitioner, and in determining whether it exists at all, either by the state or the petitioner, and, if so, whether it must be by writ of error, or appeal, or certiorari. At the common law it seems that no appeal or writ of error was allowed from a judgment in a habeas corpus proceeding remanding or discharging the prisoner. Church on Habeas Corpus (2d Ed.) § 386. If the proceeding is in the nature of a criminal action, by our statute a writ of error would lie from this court to review a final judgment of an inferior court remanding a prisoner. Gen. St. 1883 (Cr. Code) § 972. If, upon the other hand, it is a civil action, within the meaning of that term as used in the Code of Civil Procedure, a judgment remanding, as well as one discharging, the prisoner is reviewable here on writ of error, since, by section 406 of the Code (Mills' Ann. Code), all final judgments of inferior courts of record may thus be investigated by either party thereto. Our Court of Appeals, in McKercher v. Green, 13 Colo.App. 270, 58 P. 406, said that the better doctrine in this country is that such judgments are reviewable by writ of error. In People v. Court of Appeals, 27 Colo. 405, 61 P. 592, 51 L.R.A. 105, we said, in referring to the McKercher Case, that the writ does lie to review a judgment of an inferior court determining the custody of an infant.

Though it is not necessary to a decision of this case, we deem it proper to say that, as at present advised, we are inclined to the view that a proceeding in habeas corpus to determine the legality of an [37 Colo. 114] imprisonment, like that the determine the custody of an infant, is at least in the nature of a civil action, and that a judgment of an inferior court of record in this state either remanding or discharging a prisoner in such proceeding is reviewable here by writ of error. But, if this be not so, it is clear that the Supreme Court has power, under section 3 of article 6 of the Constitution, to issue its original writ of certiorari, as was done here, to review the judgment in this particular case, whether it be civil or criminal, because, as we shall show, the judgment discharging the prisoner was clearly in excess of the jurisdiction of the district court. In view of our numerous decisions, it seems scarcely necessary to observe that the Supreme Court, in the exercise of its original jurisdiction, has power by...