McFarland v. State

• Decision Date: 26 May 1961
• Docket Number: No. 34916,34916
• Citation: 109 N.W.2d 397,172 Neb. 251
• Parties: Robert D. McFARLAND, Plaintiff in Error, v. STATE of Nebraska, Defendant in Error.
• Court: Nebraska Supreme Court

Page 397

109 N.W.2d 397

172 Neb. 251

Robert D. McFARLAND, Plaintiff in Error, v. STATE of Nebraska, Defendant in Error.

No. 34916.

Supreme Court of Nebraska.

May 26, 1961

Syllabus by the Court

1. The sufficiency of evidence adduced at a preliminary hearing to hold an accused to answer for a crime with which he is charged may be raised and tried in habeas corpus proceedings.

2. The holding of an accused person for trial in the district court at the conclusion of a preliminary examination upon a valid complaint gives that court jurisdiction until he be discharged by due course of law.

3. It is the general rule that a court is without jurisdiction where it attempts by habeas corpus to interfere with the exercise by another court of jurisdiction theretofore acquired, whether such jurisdiction is acquired in another habeas corpus proceeding or on appeal, or otherwise, unless the prior jurisdiction has been terminated.

4. A writ of habeas corpus can be granted only by a court having jurisdiction, and the exercise of power to grant the writ cannot be used to unsettle valid legal proceedings, or to interfere with the exercise of jurisdiction of other courts.

5. It is the general rule that a judicial officer, when required to exercise his judgment or discretion, is not liable criminally for any error which he commits, provided he acts in good faith. A judicial officer who acts fraudulently or corruptly is responsible by criminal contempt, whether he acts under the law or without the law.

6. When a judge collaborates with one charged with crime to secure his release by the issuance of a void writ of habeas corpus and thereafter cites the judge of the court having jurisdiction of the criminal proceeding for criminal contempt for disregarding the void writ, such judge, under proper evidence, may be punished for criminal contempt.

7. Where the evidence shows that the conduct of a judge charged with contempt was calculated to destroy the authority, dignity, and integrity of another court and to obstruct the proceedings and hinder the administration of justice in such other court in a matter of which it had jurisdiction, the rule of judicial immunity may not be invoked in a contempt proceeding against the offending judge.

8. The test of guilt in such a case is not necessarily found in the mental processes by which a defendant attempts to justify his acts. The motive of the defendant and the effect intended are subjects of judicial scrutiny, and evidence may be sufficient to refute oral testimony of innocence and the asserted intention to exercise a legal right.

Dwight Griffiths, Auburn, for plaintiff in error.

Clarence A. H. Meyer, Atty. Gen., Rush C. Clarke, Sp. Asst. Atty. Gen., for defendant in error.

Heard before CARTER, MESSMORE, YEAGER, SPENCER, and BOSLAUGH, JJ.

CARTER, Justice.

Defendant was proceeded against for a constructive criminal contempt. The trial court found the defendant guilty and sentenced him to serve 30 days in the Morrill County jail and pay a fine of $500 and costs. Defendant seeks a review in this court by petition in error. In reviewing the case we shall refer to the plaintiff in error as the defendant and the defendant in error as the State.

The record shows that on November 21, 1959, a complaint was filed in the district court for Morrill County charging one Paul E. Rhodes with the crime of arson. On December 4 and 5, 1959, a preliminary hearing was held before Albert W. Crites, judge of the district court for the Sixteenth Judicial District, presiding as judge of the district court for Morrill County. At the conclusion of the preliminary hearing Rhodes was held for trial and his bail fixed at $1,000, which was posted. On January 11, 1960, an information was filed in the district court charging Rhodes with the crime of arson. On the same day Rhodes was surrendered to the sheriff of Morrill County by his bondsmen. Rhodes immediately filed a petition for a writ of habeas corpus in the county court of Morrill County in which it was alleged that he was unlawfully deprived of his liberty by the respondent sheriff of Morrill County under the commitment issued by the district court in the arson case in that the preliminary hearing in the district court was not in accordance with law, and that the evidence there adduced was insufficient to show that an offense had been committed or probable cause for holding Rhodes to answer for the alleged offense.

The defendant was at all times herein mentioned the county judge of Morrill County. The defendant as such county judge issued the writ of habeas corpus on January 11, 1960. The respondent sheriff of Morrill County made a return of the writ in which it was stated that Rhodes was hereby delivered to the county court, that he had been surrendered to him at 11:15 a. m., on January 11, 1960, by his bondsmen, and that he was being detained for trial in the district court on a charge of arson by an order of the district judge entered on December 5, 1959, while acting as an examining magistrate in the arson case pending against Rhodes in the district court. The habeas corpus case was set for hearing on January 27, 1960, and Rhodes was released on his own recognizance.

After his release by the defendant as county judge, Rhodes was taken by the sheriff of Morrill County and arraigned in the district court before Albert W. Crites, district judge. Objection was made to the arraignment because of the previous issuance of the writ of habeas corpus by the defendant as county judge. The objection was overruled. Rhodes was arraigned and stood mute, a plea of not guilty was entered by the court, bond was fixed at $1,000, and a commitment issued directing the sheriff of Morrill County to take Rhodes into custody and hold him in the jail of Morrill County or any other county jail in the state until bond was furnished. The sheriff certified on the commitment on January 11, 1960, the date of the commitment, that Rhodes was committed to the custody of the jailor of the Scotts Bluff County jail.

On January 27, 1960, the defendant, as county judge, issued the document described 'bench warrant and complaint' set out in the information in the proceeding presently before the court. We shall hereafter refer to it as the bench warrant. No petition, complaint, or affidavit was filed in the county court prior to the issuance of the bench warrant. The bench warrant issued by the defendant as county judge asserted at length that the preliminary hearing held by Judge Albert W. Crites was in violation of the Constitution and laws of Nebraska and the Constitution of the United States; that Rhodes was willfully and unlawfully deprived of his liberty by the orders of Judge Albert W. Crites; that Rhodes was confined unlawfully in the county jail of a county outside the jurisdiction of the county court of Morrill County; and that Judge Albert W. Crites did willfully, unlawfully, and contemptuously disobey and resist the lawful processes and orders of the county court and willfully, unlawfully, and contemptuously attempted to obstruct the proceedings and hinder the administration of justice in the county court of Morrill County. The respondent sheriff of Morrill County was thereupon directed to pursue and arrest Albert W. Crites and bring him before the court and the judge thereof, Robert D. McFarland, to be dealt with according to law.

The bench warrant was not served. On February 1, 1960, defendant entered an order withdrawing the bench warrant. On February 5, 1960, the information in the instant case was filed charging that on January 27, 1960, the defendant willfully, unlawfully, and contemptuously attempted to obstruct the proceedings and hinder the due administration of justice in the case of State v. Rhodes, the arson case pending in the district court, by preparing, writing, signing, issuing from the county court of Morrill County, and delivering to the sheriff of that county, the bench warrant hereinbefore referred to, contrary to the authority and integrity of the district court for Morrill County and against the dignity thereof.

The district court file in State v. Rhodes and the transcript of the evidence taken at the preliminary hearing before the district judge were offered and received in evidence without objection. The defendant admitted that he issued the bench warrant as alleged.

The evidence shows that Rhodes was an attorney at law who had been engaged in the practice of law at Bridgeport, the county seat of Morrill County, for many years. On January 26, 1960, he and the defendant called on Marvin L. Holscher, an attorney for Rhodes, at his office in Scottsbluff. The possible disqualification of Judge Albert W. Crites was there discussed by Holscher and defendant in the presence of Rhodes. Holscher testified that during the discussion of the possible disqualification of Judge Crites the defendant inquired as to how was he going to hear the habeas corpus proceeding if he is in jail, at which time Holscher stated: 'I will have nothing to do with it.' On January 10, 1960, and January 19, 1960, Holscher had discussed with Rhodes in his office at Scottsbluff the proposed filing of the habeas corpus action in the county court, and on both occasions the defendant was present and participated in the conferences. Holscher appeared and tried the habeas corpus case for Rhodes before the defendant as county judge on January 27, 1960. On that day, after the hearing, the defendant and Rhodes again came to the office of Holscher in Scottsbluff where a conference was held and a journal entry prepared for filing in the county court of Morrill County. Holscher testified that he had been employed by Rhodes on November 21, 1959, and had terminated that employment following the habeas corpus hearing on January 27, 1960.

The evidence further shows that defendant had conferred with Rhodes in Rhodes' office on several occasions concerning the habeas corpus action...