People ex rel. Curtis v. Kidney

• Decision Date: 14 January 1919
• Citation: People ex rel. Curtis v. Kidney, 225 N.Y. 299, 122 N.E. 241 (N.Y. 1919)
• Court: New York Court of Appeals Court of Appeals
• Parties: THE PEOPLE OF THE STATE OF NEW YORK ex rel. MARQUIS CURTIS, Appellant, v. HARRY R. KIDNEY as Agent and Warden of AUBURN PRISON, Respondent.

225 N.Y. 299

122 N.E. 241

PEOPLE ex rel. CURTIS

v.KIDNEY, Warden of Auburn Prison.

Court of Appeals of New York.

Jan. 14, 1919.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Habeas corpus proceedings by the People, on the relation of Marquis Curtis, against Harry R. Kidney, as Agent and Warden of Auburn Prison.From an order of the Appellate Division(183 App. Div. 451,170 N. Y. Supp. 1061), unanimously affirming an order of the County Court, dismissing a writ and remanding the relator to the custody of the respondent, relator appeals.Appeal dismissed.

Marquis Curtis, in pro. per.

Harry E. Lewis, Dist. Atty., of Brooklyn (Harry G. Anderson, of Brooklyn, of counsel), for respondent.

COLLIN, J.

Marquis Curtis, confined in the prison at Auburn under conviction and sentence, secured the writ of habeas corpus to inquire into the cause of his detention, returnable on April 1, 1918, before the county judge of Cayuga county.The County Court, after a hearing, by an order, dismissed the writ and remanded him.The Appellate Division, upon his appeal, by its order entered June 5, 1918, unanimously affirmed the order of the County Court.The appeal here is from the order of affirmance.

[1] At the outset, we must determine whether or not we have the power or jurisdiction to review the unanimous order of the Appellate Division, or, in more direct statement, whether the proceeding by writ of habeas corpus is a civil proceeding or a criminal proceeding.If it is a civil proceeding, we have not power to review the order, because of the restriction imposed by section 190 of the Code of Civil Procedure in this language:

‘From and after the 31st day of May, 1917, the jurisdiction of the Court of Appeals shall, in civil actions and proceedings, be confined to the review upon appeal of an actual determination made by an Appellate Division of the Supreme Court in either of the following cases, and no others: 1.An appeal may be taken as of right to said court from a judgment or order entered upon the decision of an Appellate Division of the Supreme Court which finally determines an action or special proceeding where is directly involved the construction of the Constitution of the state or of the United States, or where one or more of the justices of the Appellate Division dissents from the decision of the court, or where the judgment or order is one of reversal or modification.’

The section has three other subdivisions, not one of which has a relevancy to the order here.We have uniformly held that all proceedings in a criminal action or proceeding are, generally speaking, governed by the Code of Criminal Procedure.People v. Redmond, 225 N. Y. 206, 121 N. E. 785.The Code of Criminal Procedure does not contain an enactment like unto section 190 of the Code of Civil Procedure.The appeal at bar does not involve the construction of the Constitution of the state or of the United States, nor did a justice of the Appellate Division dissent from its decision.Therefore, if the appeal is in a civil proceeding, it must, under the mandate of the statute, be dismissed.

It has been stated by text-writers and in judicial opinion that the courts of England have not declared the proceeding by the writ of habeas corpus to inquire into the cause of detention either civil or criminal in its nature.Martin v. District Court, 37 Colo. 110, 86 Pac. 82,119 Am. St. Rep. 262.See, also, People ex rel. Tweed v. Liscomb, 60 N. Y. 559, 19 Am. Rep. 211;Simmons v. Georgia Iron, etc., Co., 117 Ga. 305, 43 S. E. 780,61 L. R. A. 739.The courts of our country compelled by legislative enactments regulating appellate jurisdiction or other matters of procedure, have been constrained to be more bold.In Ex parte Tom Tong, 108 U. S. 556, 2 Sup. Ct. 871, 27 L. Ed. 826, is, unquestionably, the leading decision determining the nature of the proceeding.There, as here, the jurisdiction of the court depended on whether the proceeding was to be treated as civil or criminal; if civil, the court had not, if criminal, it had, jurisdiction.The petitioner, Tom Tong, was restrained of his liberty, because of alleged violation of law, under criminal process.The court said:

‘Proceedings to enforce civil rights are civil proceedings, and proceedings for the punishment of crimes are criminal proceedings.In the present casethe petitioner is held under criminal process.The prosecution against him is a criminal prosecution, but the writ of habeas corpus which he has obtained is not a proceeding in that prosecution.On the contrary, it is a new suit brought by him to enforce a civil right, which he claims, as against those who are holding him in custody, under the criminal process.If he fails to establish his right to his liberty, he may be detained for trial for the offense; but if he succeeds he must be discharged from custody.The proceeding is one instituted by himself for his liberty, not by the government to punish him for his crime.This petitioner claims that the Constitution and a treaty of the United States give him the right to his liberty, notwithstanding the charge that has been made against him, and he has obtained judicial process to enforce that right.Such a proceeding on his part is, in our opinion, a civil proceeding, notwithstanding his object is, by means of it, to get released from custody under a criminal prosecution.’108 U. S. 559, 2 Sup. Ct. 872, 27 L. Ed. 826.

It refused to take jurisdiction.It has consistently followed the decision.Kurtz v. Moffitt, 115 U. S. 487, 494, 6 Sup. Ct. 148, 29 L. Ed. 458;Cross v. Burke, 146 U. S. 82, 88, 13 Sup. Ct. 22, 36 L. Ed. 896;Matter of Frederich, 149 U. S. 70, 75, 13 Sup. Ct. 793, 37 L. Ed. 653;Fisher v. Baker, 203 U. S. 174, 181, 27 Sup. Ct. 135, 51 L. Ed. 142, 7 Ann. Cas. 1018.Its reasoning and conclusion have been adopted by the greater number of the states in which Codes regulate procedure.State ex rel. Durner v. Huegin, 110 Wis. 189, 220, 85 N. W. 1046,62 L. R. A. 700;Matter of Thompson, 85 N. J. Eq. 221, 248, 96 Atl. 102;Selicow v. Dunn, 100 Neb. 615, 160 N. W. 991;Henderson v. James, 52 Ohio St. 242, 259, 39 N. E. 805,27 L. R. A. 290;State ex rel. Board of Education of St. Louis v. Nast, 209 Mo. 708, 731, 108 S. W. 563;State ex rel. Beekley v. McDonald, 123 Minn. 84, 142 N. W. 1051;Orr v. Jackson, 149 Iowa, 641, 128 N. W. 958;State ex rel. Brandegee v. Clements, 52 Mont. 57, 155 Pac. 271.A few of the states declare the doctrine that the cause of the restraint determines whether the proceeding be civil or criminal.If the applicant for the writ be restrained by reason of the commission of a crime or of a criminal charge, it is criminal; if otherwise, it is civil.Legate v. Legate, 87 Tex. 248, 28 S. W. 281;Gleason v. Board of Commissioners of McPherson County, 30 Kan. 53, 1 Pac. 384.

The Legislature of this state has classified the proceeding as a civil proceeding.The Code of Civil Procedure enumerates the writ as a state writ (section 1991), and contains elaborate provisions regulating the exercise of the common-law power to issue and adjudge it (sections 2015-2066), including those relating to rights of appealing (sections 2058-2064;People ex rel. Hubert v. Kaiser, 206 N. Y. 46, 99 N. E. 195).It is a special proceeding (sections 3333,3334).The title relating to state writs is designated, ‘Special Proceedings Instituted by State Writ,’ and sections within the title frequently refer to such proceedings as special.It is a civil special proceeding (section 3343, subd. 20).The Code of Criminal Procedure defines ‘special proceedings of a criminal nature.’Section 2, part 6.The proceeding by writ of habeas corpus is not one of the special proceedings of a criminal nature, and assuredly, it is not within the definition of a criminal action.Code...