State, ex rel. Flippin v. Sievers

• Decision Date: 15 June 1918
• Docket Number: 20243
• Citation: 168 N.W. 99,102 Neb. 611
• Parties: STATE, EX REL. CHARLES A. FLIPPIN, APPELLANT, v. GUSTAV SIEVERS, SHERIFF, APPELLEE
• Court: Nebraska Supreme Court

168 N.W. 99

102 Neb. 611

STATE, EX REL. CHARLES A. FLIPPIN, APPELLANT, v. GUSTAV SIEVERS, SHERIFF, APPELLEE

No. 20243

Supreme Court of Nebraska

June 15, 1918

APPEAL from the district court for Hall county: JAMES R. HANNA JUDGE. Affirmed.

AFFIRMED.

Prince & Prince and E. G. Kroger, for appellant.

Willis E. Reed, Attorney General, and John L. Cutright, contra.

CORNISH J. HAMER, J., not sitting.

OPINION

CORNISH, J.

The relator, appellant, detained under a complaint charging him with feticide and homicide, committed upon one Emma Staack, appeals from the order of the district court for Hall county denying his application for a writ of habeas corpus. He contends that the evidence did not show the commission of the crime or any possible connection of the appellant with the crime.

We are of opinion that the evidence was sufficient to justify the magistrate in finding that a criminal abortion was committed upon Emma Staack, resulting in her death. This is the fair inference from the testimony of the three doctors who testified, and, when Doctor Phelan used the word "abortion," he evidently used it in the popular sense of criminal abortion. The evidence also makes it probable that the accused committed the crime. No defensive showing was made. The girl's father testified that he attended her when she was sick, and the witness Bordman testified to an admission by the accused that he had delivered a fetus from her. At a preliminary examination, only a prima facie showing is required, and, where the testimony shows that an offense has been committed, and there is testimony tending to show that the accused committed the offense, this court, on a writ of habeas corpus, will not weigh the evidence to see whether it is sufficient. In re Balcom, 12 Neb. 316, 11 N.W. 312; State v. Banks, 24 Neb. 322, 38 N.W. 830; Rhea v. State, 61 Neb. 15, 84 N.W. 414; Jahnke v. State, 68 Neb. 154, 94 N.W. 158.

The appellant had been previously discharged on habeas corpus on a complaint in the same form and for the same offense as the one under consideration. It is contended that under section 9255, Rev. St. 1913, the previous discharge is res judicata. It appears that the first discharge was ordered on the ground "that the record fails to show that any crime was committed in Hall county, Nebraska," the place alleged. Section 9255, supra, is in part as follows: "Any person who shall be set at large upon any habeas corpus, shall not be again imprisoned for the same offense, unless by the legal order or process of the court wherein he or she shall be bound by recognizance to appear or other court...