State ex rel. Conroy v. Miller
| Decision Date | 19 February 1895 |
| Docket Number | 7512 |
| Citation | 62 N.W. 238,43 Neb. 860 |
| Parties | STATE OF NEBRASKA, EX REL. DANIEL S. CONROY, v. FRED A. MILLER |
| Court | Nebraska Supreme Court |
ERROR from the district court of Lancaster county. Tried below before HOLMES, J.
AFFIRMED.
Alex. Altschuler, for relator.
A. S Churchill, Attorney General, contra.
On the 5th day of January, 1895, the plaintiff in error applied to the Hon. E. P. Holmes, one of the judges of the district court of Lancaster county, for a writ of habeas corpus, against Fred A. Miller, sheriff of said county. Upon the hearing the application was denied. The petitioner prosecutes error.
It is alleged in the petition, substantially, and by the respondent admitted to be true, that on the 18th day of September, 1894 the relator was arrested upon the charge of grand larceny filed against him in the police court of the city of Lincoln, and, upon a preliminary examination had before said court, he was required to enter into a recognizance in the sum of $ 200 for his appearance at the next term of the district court of said county, and in default of bail he was committed to the county jail, where he has ever since been confined; that the first term of said district court held after said preliminary hearing convened on the 24th day of September, 1894, and ended on December 31, 1894; that no information has been filed by the county attorney in said court against the relator upon said charge, or for the commission of any other offense. The relator contends that he is entitled to be discharged from imprisonment on the ground that an information was not filed against him during the September, 1894, term of the district court of Lancaster county. The proper determination of this question requires an examination and construction of several provisions of the Criminal Code. Section 389 of said Code reads as follows: "Any person held in jail charged with an indictable offense shall be discharged if he be not indicted at the term of the court at which he is held to answer, unless such person shall have been committed to jail on such charge after the rising and final report of the regular grand jury for said term, in which case the court in its discretion may discharge such person or order a new grand jury, as provided in section four hundred and five, or require such person to enter into recognizance with sufficient security for his appearance before said court to answer such charge at the next term thereof; Provided, That such person so held in jail without indictment shall not be discharged, if it appears to the satisfaction of the court that the witnesses on the part of the state have been enticed or kept away, or are detained and prevented from attending court by sickness or some inevitable accident." The foregoing section was under consideration in Ex parte Two Calf, 11 Neb. 221, 9 N.W. 44, where it was held that a person, who has been committed to jail upon a preliminary examination for a criminal offense, is entitled to be discharged from such imprisonment where no indictment is returned against him at the term of court at which he is held to answer, unless the state's witnesses have been prevented from attending court. This holding is but declaratory of the plain provisions of the statute. Since that decision was pronounced the legislature has made provision for prosecuting offenses on information, reserving, however, to the judges of the district courts the power to call grand juries when it is deemed expedient so to do. (See ch. 54, Criminal Code.) Now prosecutions may be either upon information filed by the county attorney or by indictment. Section 579 of said Code provides, inter alia, that all informations shall be filed during term, in the district court having jurisdiction of the offense. Sections 581 and 583 are as follows:
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