Smith v. Henson
| Decision Date | 06 September 1944 |
| Citation | 182 S.W.2d 666,298 Ky. 182 |
| Parties | SMITH v. HENSON et al. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Clay County; Franklin P. Stivers, Judge.
Habeas corpus proceeding by Arthur Smith against Tom J. Henson and others to procure petitioner's release on bail pending his trial for murder. From an order dismissing the petition petitioner appeals.
Affirmed.
A. T. W. Manning and John M. Little, both of Manchester, for appellant.
Eldon S. Dummit, Atty. Gen., Harry H. Wilson and Roy W. House Asst. Attys. Gen., Wm. Rice, of Manchester, and Martin Wilson, of Pineville, for appellee.
STANLEY Commissioner.
The appeal is from an order of the Judge of the Clay circuit court dismissing the petition for a writ of habeas corpus filed by the appellant, Arthur Smith, against the appellee T. J. Henson, jailer of Clay County. The court has convened in special session during vacation to consider it. Section 429, Criminal Code of Practice as amended by Ch. 93, Acts of 1940.
The petitioner is under indictment charged with the murder of Houston Greene. The case has been transferred from Bell to Clay County, and the defendant placed in the custody of the respondent. The petitioner has not asked for an absolute discharge but release upon reasonable bond pending his trial. Previously, the Judge of the Clay circuit court, after hearing evidence, had overruled the defendant's motion that he be allowed bail.
The question is raised as to the right of the petitioner to obtain the relief sought by habeas corpus since another remedy has been provided and he has pursued it by his motion for bail. Ordinarily the writ will not be granted where there is another adequate remedy. Stonefield v. Buchanan, 289 Ky. 386, 158 S.W.2d 970; Sharpe v. Commonwealth, 292 Ky. 86, 165 S.W.2d 993.
At all times since the adoption of the Code of Practice in criminal cases we have had provisions for obtaining release on bail by motion or as a matter of right (Sec. 72 et seq.), and also by a writ of habeas corpus, Section 399 providing that that remedy shall be available to anyone who 'is imprisoned when by law he is entitled to bail.' The same appears by implication in the terms of Section 426.
We cannot say, therefore, that having sought to have the court fix bail, a prisoner is barred from invoking the highly remedial and jealously regarded writ of habeas corpus. 39 C.J.S., Habeas Corpus, § 34, note 85, p. 537. The right thus to proceed was recognized in Hacker v. Com., 288 Ky. 222, 155 S.W.2d 867, although the prisoner had not moved the circuit court to grant bail after the county judge, sitting as an examining court, had denied it. We entertained the appeal, considered the records made in both courts and concluded that they authorized the denial of bail. In Burchell v. Tartar, 242 Ky. 612, 47 S.W.2d 75, a prisoner charged with a capital crime has been refused bail by the circuit judge. He filed an original proceeding in this court seeking a writ of habeas corpus to the end that bail be fixed by the court. As there is no appeal from an order denying bail, because not final, we held that to entertain the original proceeding here would in effect be the granting of an appeal from the adverse decision on the motion for bail, and, therefore, denied the writ. It is to be noted that that case was decided before the amendment of the Code authorizing an appeal in habeas corpus cases. But the point decided was not that the remedy did not exist when invoked in the circuit court. Nor, obviously, did we consider the extent of the court's power or the conditions under which the issuance of the writ is authorized. These and other cases, however, recognize the availability of the remedy when a motion for bail has been denied. Indeed, we may go further and observe that in most instances application for bail in the usual manner is prerequisite to an application by the method of habeas corpus, which may be made to a judge other than the one who acted on the motion. This is so because of the proper construction of the law respecting the remedy.
The important question develops as to the character of the procedure for habeas corpus under circumstances of this case, or the power of the trial judge. The former proceeding to obtain bail certainly cannot be ignored. It constitutes an important part of the record in the case. To say that this is a de novo hearing is to say that there can be a new trial by a judge of coordinate jurisdiction or, as in the present case, by the same judge, not once but ad infinitum, since Sec. 429, Criminal Code of Practice, declares that a judgment under a writ of habeas corpus shall not prevent the issuing of another writ for the same cause. To go further, since there may be an appeal to this court from an order denying or issuing the writ, it would be the equivalent of an appeal on the merits of the non-appealable order on the motion for bail. And, yet every individual has the right to resort to the ancient remedy for an adjudication of whether he is 'imprisoned when by law he is entitled to bail.' Sec. 399, Criminal Code of Practice. We think the apparent inconsistency in the matter of securing an appeal indirectly may be harmonized or rationalized by looking to the fundamental purposes of the writ of habeas corpus. After pointing out that the vital purpose is to obtain immediate relief from illegal confinement, the text of 25 Am.Jur., Habeas Corpus, Sec. 2, continues:
It is to be borne in mind also that where there has been a judgment in the case, a habeas corpus proceeding is a collateral attack on that judgment. It lies only where the judgment is void and does not lie to obtain a new trial or an appeal or release from custody by establishing error of disclosing some latent or hidden fact which may have affected the result. Department of Public Welfare v. Polsgrove, 250 Ky. 517, 63 S.W.2d 603; Jones v. Com., 269 Ky. 772, 108 S.W.2d 812; Glenn v. Porter, 292 Ky. 719, 168 S.W.2d 32; Smith v. Buchanan, 291 Ky. 44, 163 S.W.2d 5, 145 A.L.R. 813. An order entered on a motion for bail is a judgment, although it is not final insofar as the court which made it is concerned.
We must, therefore, view the proceeding to obtain bail by the method of habeas corpus as a test of the legality of the judgment or action of the court on the motion for bail, and not as authorizing a trial de novo on the merits of the prisoner's claim, based upon...
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...or refusing to reduce the amount of bail in a criminal proceeding. Young v. Russell, Ky., 332 S.W.2d 629 (1960); Smith v. Henson, 298 Ky. 182, 182 S.W.2d 666 (1944). However Abraham's counsel advances a number of reasons why the writ of habeas corpus does not provide an adequate vehicle for......
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