Miskimmins v. Shaver

• Decision Date: 18 September 1899
• Citation: 8 Wyo. 392,58 P. 411
• Parties: MISKIMMINS v. SHAVER, SHERIFF
• Court: Wyoming Supreme Court

58 P. 411

8 Wyo. 392

MISKIMMINS v. SHAVER, SHERIFF

Supreme Court of Wyoming

September 18, 1899

PETITION by John Miskimmins for a writ of habeas corpus.

This is a writ of habeas corpus.The prosecuting attorney of Laramie County upon information furnished him by the plaintiff made complaint before a justice of the peace against one Oliver C Hough charging him with having obtained the sum of $ 1,130 from plaintiff by false pretenses.He and one James Raff also charged with the same offense had left this State and gone to the State of Colorado, and the plaintiff made the necessary affidavit to obtain a requisition, and they were arrested and brought back to this State for trial.Upon the preliminary examination the plaintiff was placed upon the witness stand by the prosecution and asked the following questions:

"Q.Did you purchase or attempt to purchase from the defendantsJames Raff and Oliver C. Hough, or either of them, a bunch of cattle, or any interest in any cattle, between the first day of July, A.D. 1899, and the 15th day of July, A.D. 1899, or about that time?If so, state the particulars of the purchase or attempted purchase.

Q.If any such purchase or attempt to purchase was made, state where the defendants or either of them stated at the time said cattle were situated, or under whose charge.

Q.If any such purchase or attempt to purchase was made, state fully all the facts and circumstances leading up to the said transaction, and all the facts of the transaction itself.

Q.You may state fully what, if any, admissions the defendantsJames Raff and Oliver C. Hough alias Clifford W. Lang, or either of them made to you in regard to this transaction, stating the date, time, and place, and who was present if anybody, and all the facts and circumstances of such admissions if any were made.

Q.State fully and particularly what money, if any, was paid either by you or your direction to the defendants or either of them, as purchase price, or on the purchase price, for the cattle, or the interest of the defendants or either of them in the cattle, and all the facts in relation to such payment.

Q.If any purchase or attempted purchase was made, state whether or not you obtained any cattle, by your purchase or attempted purchase and if your answer is in the negative, state fully all you know of the reasons why you did not obtain any cattle, or any interest in any cattle, by your purchase or attempted purchase."

He declined to answer all of them upon the ground that the answers to them would tend to criminate him.In the meantime the prosecuting attorney had had some difficulty in getting the plaintiff, the prosecuting witness, before the justice to testify in the case, and had filed a complaint against him charging him with compounding the felony with which the defendants were charged.The justice decided that the plaintiff must answer the questions, and upon his continued refusal adjudged him to be in contempt, and committed him to jail until he should consent to answer.The plaintiff then sued out a writ of habeas corpus before Hon. Richard H Scott, the district judge of the first district.Judge Scott upon the hearing adjudged that the plaintiff was properly imprisoned for his failure to answer, and remanded him to jail.The plaintiff then presented another petition for the writ of habeas corpus to one of the judges of this court who issued it and made it returnable before the supreme court.

W. R. Stoll and R. W. Breckons for plaintiff.

The petitioner is entitled to his discharge upon habeas corpus being imprisoned in violation of a constitutional privilege, notwithstanding that he might have instituted proceedings in error from the decision of the district judge refusing to discharge him upon the application made before that court.But no appeal lies from that decision because (1) habeas corpus is not a criminal case, and is therefore not controlled by Sections 3354-3360, Rev. Stat.;(2) it is not a civil case within the meaning of Sections 3126-3151, Rev. Stat.;(3) an order denying writ of habeas corpus is a final order.(11 Ency.Pl. &Pr., 72-79; in re Witter v. Lyon,34 Wis. 564; in re Day, id., 638;Shannon v. State,18 id., 633;State v. Giles,10 id., 101; in re Fenelon,37 id., 231.)(4) the order was not a court order, but was made by the district judge in chambers.Hence no appeal lies.(Carper v. Fitzgerald,121 U.S. 87;Broadwell v. Com.,32 S.W. 141(Ky.); in re Perkins,2 Cal. 424; in re Ring,28 id., 248;Hammond v. People,32 Ill. 446; ex parte Thompson, 93 id., 99;Lambert v. Barrett,157 U.S. 697;State v. Brownwell(Wis.),50 N.W. 415; in re Juneman(Tex.), 13 S.W. 783.)

No proceeding in error or appeal lies in habeas corpus unless the statute authorizes it.This court has jurisdiction to issue the writ regardless of the number of previous applications.(Const., Art. 5, Secs. 1,2,3;R. S., Sec. 1264;30 A. 910;2 Cal. 242;28 id., 248;32 Ill. 446; 93 id., 89;9 Ill.App. 523;3 S.W. 631;8 Wall., 85;30 S.W. 666; 40 Tex. 6;27 Tex. 731;19 So. 652;20 Fla. 17;33 P. 957;35 id., 23;57 Ill.App. 505.)

It is the province of the court to judge whether any direct answers to the questions that may be propounded will furnish evidence against the witness.If such answer may disclose a fact which forms a necessary essential link in the chain of testimony, which would be sufficient to convict him of any crime, he is not bound to answer it so as to furnish matter for that conviction.In such case the witness must himself judge what his answer will be; and if he say on his oath that he can not answer without accusing himself, he will not be compelled to answer.(1 Thomp. on Tr., 286;Chamberlain v. Wilson,12 Vt. 153;Counselman v. Hitchcock,142 U.S. 547; ex parte Irvine, 74 F. 954;Brown v. Walker,161 U.S. 591;People v. Forbes,143 N.Y. 219;People v. Seaman,29 N. Y. S., 329;People v. Mather,4 Wend. 239;Adams v. Lloyd, 3 H. & N., 351;State v. Edwards, 2 N. & McCord, 376; Poole v. Perritt, 1 Spears, 121;Sanderson's case, 3 CranchC. C., 638;U. S. v. Burr,25 F. C., 41;Neale v. Coningham, 1 CranchC. C., 76;U. S. v. Moses, id., 170. U. S. v. Lynn, 2 id., 309; ex p. Clark, 37 P. 230;S. Ry. N. Co. v. Russell,18 S.E. 40;Stevens v. State,32 P. 350;Minter v. People,29 N.E. 45;Com. v. Tridee,9 N.E. 510;Lombard v. Mayberry,40 N.W. 271;South Bend v. Hardy,98 Ind. 577;Lister v. Baker, 6 Black (Ind.), 439;19 So. 652;11 Iowa 469;9 How. Pr., 394;8 Wend. 595;13 Minn. 249;15 Ark. 624;6 Cow., 254;29 N.H. 280;1 Cold., 146.

The law presumes that the witness will answer truthfully and fully, if he answers at all.The constitutional privilege is to be construed liberally in favor of the privilege.

Compounding of a felony embraces two elements.(1) The felony itself.(2) The compounding.One charged with compounding a felony, can not be called upon, as a witness, to prove the felony.(U. S. v. Lynn, 2 CranchC. C., 309; ex p. Irvine, 74 F. 954.)

Previous sworn statements can not operate as a waiver of the privilege afterward claimed.(Bellinger v. People,8 Wend. 595;Cullen v. Com.,24 Gratt., 624;Temple v. Com.,75 Va. 892;Miller v. State, 11 Lea, 18;Emory v. State, 78 N.W. 145.)

An order is made in excess of jurisdiction when the court has no right to enter it.(59 Cal. 405;34 Tex. 668; Church on Habeas Corpus, 318 et seq.;142 U.S. 547;74 F. 954;60 N.Y. 559.)

H. Waldo Moore, county attorney, and Herman E. Wellnitz, for respondent.

While the decision on a writ of habeas corpus, independently of statutory provisions is not a final judgment, and therefore not subject to review on a writ of error or appeal, it is entitled to some consideration on a second application and may warrant the refusal of the second.This occurs where the case has already been heard upon the same evidence where the facts and circumstances are the same.When this is so, the first judgment will be undisturbed.(Church on Habeas Corpus, 389;9 Ency.Pl. &Pr., 1070.)

The supreme court, though it has original jurisdiction in habeas corpus, will not entertain a petition where a like petition has before been presented to a judge of the superior court and refused.(In re Graham,34 P. 931.)The general rule certainly is that evidence given or statements made by a party under compulsion or order of court tending to criminate himself can not be put in evidence on a criminal proceeding against him.(U. S. v. Prescott, 2 DillonC. C., 405; Green. on Ev., vol. 1, p. 549;Wharton's Crim. Ev (9th ed.), Section 463;Horstman v. Kaufman,97 Pa. 147;Stewart Rapal je's Witnesses, 269.)There are several rulings to the effect that a witness can not be compelled to give a link to a chain of evidence by which his conviction of a criminal offense can be furthered.This proposition however can not be maintained to its full extent since there is no answer which a witness could give which might not become part of a supposable concatenation of incidents from which criminality of some kind might be inferred.To protect a witness from answering, it must appear from the nature of the evidence which the witness is called to give that there is reasonable ground to apprehend that should he answer he would be exposed to a criminal prosecution.The witness is not the exclusive judge as to whether he is entitled on this ground to refuse to answer.The question is for the discretion of the judge, and in exercising this discretion he must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence.(Wharton's Crim. Ev.(9th ed.), Sec. 466, and note, p. 466;State v. Duffy,15 Iowa 425;U. S. v. Miller, 2 Cranch, C. C., 247; DeVaughn's case, id., 501;Richman v. State,2...