Smith v. State
| Citation | 32 N.W. 594,21 Neb. 552 |
| Parties | SMITH v. STATE. |
| Decision Date | 06 April 1887 |
| Court | Supreme Court of Nebraska |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Where a habeas corpus case is brought on error from a district court, the ordinary rules as to the time of filing briefs will not be adhered to; but the case will be heard as soon as practicable after the petitioner's brief is filed.
A complaint must charge explicitly all that is essential to constitute the offense, and it cannot be aided by intendments.
Section 330 of the Criminal Code contemplates that the charge of the crime against the person to be arrested and delivered up must be made in the state where the offense was committed. The charge must be to some court, magistrate, or officer, in the form of an indictment, complaint, or other accusation known to the laws of such state or territory; and a complaint made before a magistrate in this state, which fails to allege that such charge is pending against the accused in the state where it is alleged the offense was committed, will not confer jurisdiction on such magistrate.
Error to district court, Lancaster county.
Sawyer & Snell, for plaintiff.
J. E. Philpott, for defendant.
On the fourth day of March, 1887, the plaintiff was arrested by a policeman of the city of Lincoln, on a telegram, and lodged in the city jail, where he remained until the ninth of March, when, between 10 and 11 o'clock at night, he was removed to the county jail. He was imprisoned in the city jail from the fourth to the seventh of March, without any warrant for his arrest having been issued. On the seventh of March the following information was filed:
“ The State of Nebraska vs. C. B. Smith.
In the Police Court of the City of Lincoln, Lancaster County, Nebraska.
The State of Nebraska, Lancaster county--ss.:
The complaint and information of J. K. Post, of the county of Lancaster, made before me, A. F. Parsons, judge of the police court within and for the city of Lincoln, Lancaster county, Nebraska, on this seventh day of March, A. D. 1887, who, being duly sworn, on his oath says that C. B. Smith is now within said last-named county and city, and that said Smith stands charged with the commission of a criminal offense against the laws of the Terr. of Dakota, which, if committed in this state, would by the laws thereof have been a crime, and said Smith is now a fugitive from justice, contrary to the form of the statute in that behalf provided, and against the peace and dignity of the state of Nebraska.
J. K. POST.
Subscribed in my presence, and sworn to before me, this seventh day of March, A. D. 1887.
Upon this complaint being filed, an examination of the plaintiff herein was thereupon had, and he was remanded to prison. A copy of the commitment will be found in the answer and return of A. C. Langdon to the writ of habeas corpus hereafter referred to.
On the tenth day of March the plaintiff presented a petition to the district judge of Lancaster county for a writ of habeas corpus, which writ was duly issued on said day, to which the party having said plaintiff in charge made the following answer and return:
“ State of Nebraska, Lancaster County--ss.:
A. C. Langdon, for answer and return to said writ, states that Clifford B. Smith, on the ninth day of March, A. D. 1887, was placed in his custody by virtue of a warrant of commitment, by authority of which he now holds said Smith in custody, of which the following is a copy:
‘ The State of Nebraska vs. C. B. Smith.
The State of Nebraska, Lancaster County--ss.:
In Police Court of the City of Lincoln, Nebraska.
The State of Nebraska to the Keeper of Jail of said County, Greeting: You are hereby commanded to receive into the jail of said county C. B. Smith, and him safely keep, unless sooner discharged by due course of law, he having been brought before the undersigned, police judge in and for said city, on the seventh day of March, 1887, charged in writing, on the oath of J. K. Post, with the commission of a criminal offense against the laws of the territory of Dakota, which, if committed in the said state of Nebraska, would by the laws thereof have been a crime, and that the said Smith is now a fugitive from justice from the said territory of Dakota, and on the day first aforesaid having been by the court, duly advised in the premises, found and adjudged guilty of the offense with which he stands charged, and ordered and adjudged to be committed to the county jail of Lancaster county, until discharged by due process of law, and be delivered to some suitable person, to be removed therefrom to said territory of Dakota, the proper place for the further prosecution of this cause. You will make return of this writ, and of your proceedings thereunder, as required by law.
Witness my hand this ninth day of March, 1887.
And said A. C. Langdon further says, upon information and belief, that the said Clifford B. Smith now stands charged, and that a warrant has been duly issued for his arrest, for the crimes of grand larceny and malicious mischief, having been committed by him in the county of Fall River, in the territory of Dakota, during the year 1886; that said county of Fall River is five hundred miles north-west from Lincoln, Nebraska, and that Hot Springs, the county-seat of said Fall River county, is situated from Bismarck, the capital of Dakota, by the usual mail route, about 900 miles; that H. A. Goddard, sheriff of Fall River county, received on the ninth day of March the first telegram from said J. K. Post that the said Smith had been examined and held by said police judge as a fugitive from justice from said territory of Dakota; that upon the receipt of said telegram one E. D. Norton, the duly-authorized district attorney for said Fall River county, on said ninth day of March, made up and forwarded to the governor of said territory at Bismarck an application for a requisition from the executive of the state of Nebraska for the said Clifford B. Smith; and that on the ninth day of March said H. A. Goddard, sheriff as aforesaid, left said town of Hot Springs for Lincoln, Nebraska, and is now here awaiting for a reasonable time to elapse for the transmission to him by the governor of Dakota of his application and demand of said governor of Nebraska for a requisition and delivery thereunder of the said Smith to him, as the agent duly authorized therefor, and that such reasonable time had not yet elapsed.
A. C. LANGDON,
Keeper of the County Jail of Lancaster County, Nebraska.”
On the hearing the district court refused to discharge the plaintiff, and caused him to be remanded to the jail of said county. He then filed a petition in error in this court in order that the judgment of the district court might be reviewed. The attorney for the defendant in error contends that he cannot be compelled to submit the cause until more than 15 days have elapsed from the filing of the petition in error. In answer to this objection it is sufficient to say that the ordinary rules governing civil actions do not apply. If the plaintiff is unlawfully restrained of his liberty, as he contends, the case should be...
To continue reading
Request your trial
-
Smith v. State
...cannot be aided by intendments. O'Connor v. State, 46 Neb. 165, 64 N. W. 719;State v. Hughes, 38 Neb. 369, 56 N. W 982;Smith v. State, 21 Neb. 552, 32 N. W. 594. It is, however, the duty of the court to give the words used in the information their ordinary and commonly accepted meaning, and......
-
Porter v. Flick
...over which a judge presides, but the judge himself when exercising, at chambers, judicial power conferred by statute. Smith v. State, 21 Neb. 552, 32 N.W. 594; Clark v. State, 24 Neb. 263, 38 N.W. 752; In Van Sceiver, 42 Neb. 772, 60 N.W. 1037; Horton v. State, 60 Neb. 701, 84 N.W. 87. We w......
-
State v. White
...in order to be valid, should show upon its face a compliance with these requisites and necessary conditions.' In the case of Smith v. State, 32 N.W. 594, the Court of Nebraska, in passing upon a statute similar to ours, said: 'The word 'charged' in the statute contemplates that the person a......
-
Knight v. State
... ... of legal presumptions.’ But, be this as it may, the ... claim cannot be maintained; for, as already stated, the ... indictment must be explicit, and leave nothing to mere ... inference. 10 Am. & Eng. Enc. Law, p. 567; Phipps v. State ... 22 Md. 380; State v. Seay, 3 Stew. (Ala.) 123; Smith v ... State, 21 Neb. 552; U.S. v. Morrissey, 32 F. 147 ... [54 ... Ohio St. 377] It is further argued that, even though the ... indictment might not be good at common law, yet it is saved ... by section 7215, Rev. St. called the ‘ Statute of ... Jeofails.’ The clauses ... ...