State ex rel. Jackson v. Kennie

• Decision Date: 26 March 1900
• Citation: 24 Mont. 45
• Parties: STATE ex rel. JACKSON v. KENNIE, Justice, et al.
• Court: Montana Supreme Court

24 Mont. 45

STATE ex rel. JACKSON
v.
KENNIE, Justice, et al.

Supreme Court of Montana.

March 26, 1900.

Appeal from district court, Custer county; C. H. Loud, Judge.

Otway Jackson was committed to jail in default of security to keep the peace, and from an order of the district court denying his application for certiorari to review such commitment, and from an order denying his application for release on habeas corpus, he appeals. Affirmed.

On October 31, 1899, Otway Jackson, the relator herein, applied to the Honorable C. H. Loud, judge of the Seventh judicial district, for writs of review and habeas corpus, to review and annual an order of A. W. Kennie, a justice of the peace in and for Miles City township, in Custer county, whereby the said relator was committed to the county jail in default of security to keep the peace, and to secure an order directing the relator's release from custody. The writs were applied for under separate petitions. Both were issued and made returnable before the said judge at Miles City on November 1, 1899. On that day return was made by the justice of a complete transcript of the proceedings in his court wherein the order complained of was made, and also by the sheriff of Custer county of the warrant under which he held the relator in custody. From the record it appears that on September 6, 1899, complaint was made on oath to the said justice, by one Clara C. Jackson, that at various times, and particularly on the 3d day of September, 1899, Otway Jackson had unlawfully and maliciously threatened to commit the crime of murder upon the complaint, and that she had good ground to believe, and did believe, that the said Otway Jackson intended to injure her and take her life. The justice was asked to issue his warrant of arrest for the said Otway Jackson, and require him to furnish security to keep the peace towards the state, and particularly towards the complainant. Upon this complaint a warrant of arrest was issued, and the defendant, relator herein, brought before the justice for a hearing on September 16th. The defendant entered his plea of not guilty. Thereupon the justice heard the evidence of witnesses, and reduced it to writing, as required by law. On September 18th the justice made the following order: “The court finds that there is just reason to fear the commission of the offense charged in the complaint, and hereby orders that the defendant give bond in the sum of $1,000 to keep the peace for one year towards the state of Montana, and particularly towards Clara Jackson, the complainant in this action, and in default of such bond the defendant be committed to the jail of Custer county until such bond be given.” Thereupon, the defendant having failed to give the bond as required by this order, a warrant of commitment was issued to the sheriff of Custer county, as follows: “Miles City, Mont., Sept. 18, 1899. The State of Montana to the Sheriff of Custer County: Otway Jackson having been tried before me, and found guilty of the charge of threatening to commit murder, and an order having been made by me that the said Otway Jackson furnish a bond of $1,000 to keep the peace towards the state of Montana, and more particularly towards Clara Jackson, for one year, and such bond not having been given, and in default of the same you are hereby commanded to receive him into your custody, and detain him in the common jail of Custer county until he is legally discharged or such bond given. A. W. Kennie, Justice of the Peace.” It is alleged by the relator that the order of the justice, and the warrant of commitment thereon, were in excess of jurisdiction, and void, (1) because in the order there is not fixed or specified any period of time during which the imprisonment should continue; and (2) because the warrant does not set forth the offense charged nor the period of imprisonment; and (3) because the relator was deprived by the said justice of his right of trial by jury. Both applications were heard by the district judge at Miles City, on November 7, 1899, and were dismissed, and the relator was remanded to the custody of the sheriff, to be held by him under the warrant of the justice. From this action of the district judge this appeal is prosecuted.

John C. Lyndes and Geo. W. Farr, for appellant.

C. B. Nolan, Atty, Gen., for respondents.

BRANTLY, C. J. (after stating the facts).

The attorney general makes the contention that there is no provision in the statutes permitting an appeal to this court from an order of the district court, or a judge thereof, in habeas corpus proceedings, and that this court has no jurisdiction to entertain this appeal. His argument proceeds upon the theory that the certiorari proceeding was merely ancillary to the application for the writ of habeas corpus, and follows it; and that, if there is no appeal from the order denying this latter, there is therefore no jurisdiction in this court to consider any question arising out of the action of the district judge in dismissing the former. The correctness of this contention depends upon the two propositions, viz.: Whether an appeal lies from the order denying the writ of habeas corpus; and, if it does not, whether the application for the writ of certiorari is so far independent of the...