Michaelson v. Beemer

• Decision Date: 07 December 1904
• Docket Number: 13,975
• Citation: 101 N.W. 1007,72 Neb. 761
• Parties: JAMES P. MICHAELSON v. ALLEN D. BEEMER, WARDEN
• Court: Nebraska Supreme Court

101 N.W. 1007

72 Neb. 761

JAMES P. MICHAELSON v. ALLEN D. BEEMER, WARDEN

No. 13,975

Supreme Court of Nebraska

December 7, 1904

ERROR to the district court for Lancaster county: EDWARD P. HOLMES JUDGE. Reversed with directions.

Reversed and remanded, with directions.

T. J Doyle and Bishop & Anderson, for plaintiff in error.

Frank N. Prout, Attorney General, and Norris Brown, contra.

OLDHAM C. AMES and LETTON, CC., concur.

OPINION

OLDHAM, C.

On the 31st day of August, 1904, plaintiff in error was tried at a special term of the district court for Garfield county on a charge of grand larceny, and was found guilty and sentenced to one year's confinement in the penitentiary of Nebraska. No jury was impaneled at the trial, the state and prisoner agreeing to waive a jury. On October 6, 1904, an application for a writ of habeas corpus was made to one of the judges of the district court for Lancaster county for the release of the prisoner from the custody of the warden of the penitentiary. The application was denied, and the prisoner remanded to the custody of the warden, and from this order he prosecutes error.

There are no disputed facts in the record, and it shows that the prisoner was properly informed against by the county attorney of Garfield county on a charge of grand larceny; that he was duly arraigned, and tendered a plea of not guilty to this charge; that, by the consent of the prisoner and the county attorney, a jury was waived and a trial had to the judge of the district court, which resulted in a verdict of guilty, and sentence by the court to one year's confinement in the penitentiary, and that the warden is holding the prisoner on a commitment issued on this judgment and sentence.

The first question presented is as to whether habeas corpus will lie in the case at bar, no error proceedings having been instituted for the purpose of reversing the judgment of the district court, on which the commitment was issued. We have frequently held that the writ of habeas corpus is not a corrective remedy, and is never allowed as a substitute for the plea of a writ of error. This rule is well stated in the case of In re Fanton, 55 Neb. 703, 76 N.W. 447, in which we held:

"The writ of habeas corpus cannot operate as a proceeding in error. If a person is restained of his liberty by virtue of an absolutely void judgment, he may be discharged on habeas corpus. To obtain release by such a proceeding, the judgment or sentence must be more than merely erroneous; it must be an absolute nullity."

This doctrine is supported by an unbroken line of authorities in both the federal and state courts of this nation, and consequently the question we are confronted with at the threshold of this controversy is, was the judgment and sentence of the district court absolutely void or only erroneous? The prisoner contends that the sentence and judgment were absolutely void, and the warden, through his counsel the deputy attorney general, contends that they were merely erroneous. To determine the construction of the constitution and statutes bearing upon the contention whether or not a citizen of this state charged with a felony or infamous crime may waive his right to a trial by a jury, it is proper to examine the public policy of the state with reference to the trial of persons charged with such offenses. The public policy of the state is always reflected from its constitution, its statutes and the decisions of its court of last resort. Section 3, article I of the constitution of Nebraska, provides: "No persons shall be deprived of life, liberty or property, without due process of law." Section 6, article I, provides: "The right of trial by jury shall remain inviolate." Section 11, article I, also provides, among other things, that in all criminal proceedings the accused shall have the right to a speedy trial by an impartial jury of the county or district in which the offense is alleged to have been committed. Section 296 of the code provides for the waiver of a jury in civil cases. There is no provision, however, in the code of criminal procedure for such waiver of a jury, but section 466 of the criminal code provides: "In all criminal cases, except as may be otherwise expressly provided, the jury summoned and impaneled according to the provisions of the laws in force relating to the summoning and impaneling of juries in other cases shall try the accused." In construing this provision of the statute we held in Arnold v. State, 38 Neb. 752, 57 N.W. 378:

"The statute was designed for the protection of the state as well as the prisoner. His consent could not change the law. The rights given him by a statute he could not waive; and, even by agreement with the state's prosecutor, the tribunal which the law provided for the trial of this issue could not be set aside and some other tribunal substituted."

This doctrine is supported by a long line of well considered cases in the various states of this Union, among which may be cited State v. Carman, 63 Iowa 130, 18 N.W. 691; Cancemi v. People, 18 N.Y. 128; Harris v People, 128 Ill. 585, 21 N.E. 563; State v. Lockwood, 43 Wis. 403; Williams v. State, 12 Ohio St. 622; Cooley, Constitutional Limitations (7th ed.), 458; Ex parte Smith, 135 Mo. 223, 36 S.W. 628. If, then, the only tribunal provided by the constitution and laws of the state of Nebraska for the trial of one charged with a felony is a court and jury, it follows that the parties cannot by agreement constitute some...