Spring v. Dahlman

• Decision Date: 18 May 1892
• Citation: 52 N.W. 567,34 Neb. 692
• Parties: SPRING v. DAHLMAN, SHERIFF.
• Court: Nebraska Supreme Court

34 Neb. 692

52 N.W. 567

SPRING

v.DAHLMAN, SHERIFF.

Supreme Court of Nebraska.

May 18, 1892.

Syllabus by the Court.

1. A defendant in a criminal prosecution who has given bail for his appearance at the next term of court, and is thereby entitled to his freedom, is not entitled to the writ of habeas corpus, since he is not in custody, within the meaning of the statute.

2. In such case, if the defendant is desirous of having the legality of the prosecution inquired into by means of the writ of habeas corpus, he should first surrender himself into the custody of the sheriff.

Error to district court, Dawes county; CRITES, Judge.

Proceedings in habeas corpus by R. E. W. Spring against Dahlman, sheriff. On a judgment denying the writ, plaintiff brings error. Affirmed.Spargur & Fisher, for plaintiff in error.

I. N. Harbaugh, for defendant in error.

POST, J.

This was an application for a writ of habeas corpus to the district court of Dawes county. The petitioner demands his discharge, on the ground that he has not been brought to trial before the close of the second term of court after the filing of the information against him for murder. We find in the bill of exceptions the following record: “State of Nebraska vs. Timothy Spring. April term, 1891. Now, on this 24th day of April, A. D. 1891, this cause coming on to be heard, and the court being advised in the premises that said cause would not be tried at this term, and that said defendant having been held to confinement in the common jail of this Dawes county, Neb., for 12 months last past, and that said defendant is and has been in a failing condition of health, and by consent of the county attorney the defendant should be permitted to give bail for his appearance at the next regular term of this court, to wit, September term, 1891; wherefore the defendant, Timothy Spring, with his sureties, R. E. W. Spring and Allen G. Fisher, his sureties, appear at the bar of the court, and acknowledge themselves to be indebted to the state of Nebraska in the sum of $1,000.00, good and lawful money of the United States; to be void, however, if the said Timothy Spring shall be and appear before this court on the first day of the next regular term thereof to answer the charge contained in said information, and not depart the court without leave, and do and abide by the orders and judgment of the court then made against him. Whereupon the court ordered the defendant, Timothy Spring, to be released on said...