State ex rel. Johnson v. Goble
| Decision Date | 05 May 1939 |
| Docket Number | 30687. |
| Citation | 285 N.W. 569,136 Neb. 242 |
| Parties | STATE EX REL. JOHNSON, ATTY. GEN., ET AL. v. GOBLE, SHERIFF. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. Where a person charged with a felony in a court of this state is at liberty on bail pending trial, and where such person is legally charged before a court of competent jurisdiction in another county of this state with having committed another separate and distinct felony therein, and a warrant commanding his arrest is issued based thereon, such a person is not immune from arrest on the warrant issued on the second charge.
2. Under such circumstances, it is the duty of the officer to whom the warrant is issued directing the arrest of the accused to go at once into any county of the state where the accused may be found to there arrest the accused and forthwith remove him to the county where the alleged crime may be said to have been committed to be there dealt with as the law provides.
3. It is the duty of the courts and of the peace officers within and for the county where the accused may be so found to give proper assistance to the arresting officer in the performance of that duty.
Original proceeding by the State of Nebraska, on the relation of Walter R. Johnson, Attorney General, and another for a writ of mandamus directing Ben A. Goble, Sheriff of Gage County Neb., to arrest George M. Hauser and Leo S. Holmes pursuant to a warrant issued out of the County Court of Gage County.
Writ granted.
Where accused charged with felony is at liberty on bail pending trial and is legally charged before court of competent jurisdiction in another county with separate felony, court and peace officers within county where accused may be found have duty to give proper assistance to arresting officer in performance of duty to arrest accused and return him to county where crime may be said to have been committed. Comp.St.1929, §§ 26-1401, 26-1402, 26-1410, 28-720, 28-722 29-205, 29-404, 29-1702.
Walter R. Johnson, Atty. Gen., and Rush C. Clarke, Asst. Atty. Gen for relators.
No appearance for respondent.
George B. Boland and G. F. Nye, both of Omaha, amici curiae.
Heard before SIMMONS, C. J., and EBERLY, PAINE, CARTER, and JOHNSEN, JJ., and KROGER, District Judge.
This is an original application in this court for a peremptory writ of mandamus, directing the sheriff of Gage county to arrest one George M. Hauser and one Leo S. Holmes, hereinafter referred to as the defendants, pursuant to a warrant issued out of the county court of Gage county.
The application alleges that, prior to March 10, 1939, complaint was filed in the municipal court of the city of Omaha, Douglas county, Nebraska, charging the defendants with the commission of a felony, and the defendants were arrested by warrants issued thereon.
On March 10, 1939, a complaint was filed in the county court of Gage county by the county attorney, charging the defendants with the commission of a felony in that county, and a warrant was issued, commanding the respondent to arrest said defendants and bring them before said court. Said warrant is still in full force and effect.
The charges in the two counties are based upon alleged violations of different provisions of the statutes.
The relators allege that the defendants had fled from justice in Gage county and were in Douglas county when the Gage county warrant was issued.
A preliminary hearing on the Douglas county complaints was had on March 20, 1939. The defendants were held to trial in the district court for that county, and were committed to jail. The action is now pending in the district court for Douglas county. No date of trial has been fixed. The trial of the action will not take place until June, and probably not until October, 1939.
The defendants filed motions in the Douglas county actions, reciting that it had been stated that complaints would be filed against them in other counties; that the complaint had been filed in Gage county; that the sheriff of Gage county had stated he would arrest them and transfer them to jail in Gage county; that the offense is bailable; that the threatened action would preclude them from obtaining bail; that the Douglas county courts have assumed jurisdiction over them, and that, by reason thereof, they are not subject to arrest under complaint issued in any other court so long as the Douglas county actions are pending. The defendants prayed for an order, which was granted by the district court on March 21, 1939, enjoining the sheriff of Douglas county, his deputies or agents, and the police force from arresting, or aiding in the arrest of, the defendants for the purpose of, or preliminary to, their removal to any other county to answer criminal complaints during the pendency of the Douglas county cause; and ordering that the defendants be not removed from the jurisdiction of the district court for Douglas county, during the pendency of the action there, by any sheriff or peace officer, who, with knowledge of the order, might come into the county for that purpose. The district court for Douglas county admitted the defendants to bail, and they are now at liberty thereunder. The district court for Douglas county further ordered that its order of March 21, 1939, should remain in force " during the pendency of this cause of action and until same is finally disposed of if the defendants are at liberty under bail approved by this court to the same effect as if they remained in jail in the custody of the sheriff of Douglas county."
This court issued an alternative writ. The respondent answered, setting out generally the facts recited herein; that respondent desires to act lawfully and perform his duties in a proper manner; that he is willing and able to arrest the defendants; and that he is uncertain as to his powers and duties.
The relators moved for judgment on the pleadings.
Brief of amici curiae was filed herein " at the suggestion of Honorable Willis G. Sears, presiding judge of the district court of Douglas county." This court permitted oral argument by the amici curiae.
The primary contention of the amici curiae, in support of the order of the district court, is that a court which has a person charged with crime in its custody has exclusive custody and jurisdiction over such person until his guilt or innocence is determined, and when accused persons are at liberty under bail, the dominion of the sureties is a continuance of the original imprisonment.
This case does not present a question of a conflict in the jurisdictions of two sovereignties. Only one sovereignty is involved--that of the state of Nebraska. A situation where two prosecutions are pending in different courts of concurrent jurisdiction for the commission of a single offense is not involved. Here separate offenses against the laws of the same sovereignty are charged in different counties.
The defendants are not being tried at this time in Douglas county, and it is apparent that they will not be tried for several months. In the meantime, their presence in court in Douglas county is not required for any purpose in connection with their trial for the offenses with which they there stand charged.
The effect of the order of the district court for Douglas county is to grant to the defendants immunity from prosecution for any and all offenses against the laws of this state heretofore or hereafter committed anywhere in Nebraska outside of Douglas county, until the final determination of the charges there pending.
If the contention of amici curiae is sound, then the enforcement of the criminal law in 92 of Nebraska's 93 counties would be suspended and not a step could be taken toward the effective prosecution of the defendants in counties other than Douglas, even though they were charged with the violation of every law of this state.
Persons who commit acts, in one or more of the several counties in this state, subjecting themselves to charges and arrest under the criminal statutes, must anticipate that charges, arrest, and, where probable cause is shown, trial will follow. Persons so accused have the right, which the courts will protect, to a full and fair trial according to the law of the sovereignty where tried. Persons so accused do not have the right to use the power of the courts to avoid arrest and trial, nor to hinder and delay the enforcement of the laws. Courts should assist, not obstruct, officers of the law in the performance of their duties. Defendants cannot, of course, be tried in two places at the same time. The courts will protect their right to prepare their defense fully, and to be present at every stage of their trial. This order of the district court for Douglas county does not protect rights; it grants immunities.
With the exception of certain crimes, prosecution is barred by statute (Comp.St.1929, § 29-110) unless brought within the time limited by the act. It is possible that the present prosecution of the defendants in Douglas county might not become final until the time fixed as a limit for prosecution in other counties on other charges has passed.
Delay is often an effective defense in criminal trials. The assurance of prompt trial and punishment, where guilt is established, is a deterrent to crime. Knowledge that trial and punishment for crime will be delayed, if not escaped, encourages the commission of offenses. Prompt trial and sure punishment for crime is the policy of the law. Courts should act to aid the realization of that policy.
There are few adjudicated cases dealing with the precise question here presented. The relators cite Ex parte Vogler, 110 Tex.Cr.R. 579, 9 S.W.2d 733, 734, 62 A.L.R. 456, where a person released on bond, pending hearing on habeas corpus was...
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