State ex rel. Scott v. Crinklaw

• Decision Date: 05 June 1894
• Citation: 40 Neb. 759,59 N.W. 370
• Parties: STATE EX REL. SCOTT v. CRINKLAW, SHERIFF.
• Court: Nebraska Supreme Court

40 Neb. 759

59 N.W. 370

STATE EX REL. SCOTT

v.CRINKLAW, SHERIFF.

Supreme Court of Nebraska.

June 5, 1894.

Syllabus by the Court.

1. The writ of habeas corpus is not a corrective remedy, and is never allowed for the purpose of correcting errors of law by courts acting within this jurisdiction.

2. The object of the provision in section 11 of the bill of rights for the trial of criminal prosecutions in the county or district where the crime is alleged to have been committed, was to embody in the fundamental law of the state the provision of the common law, by which the accused was entitled to a trial before a jury of the vicinage or neighborhood, in order that he might have the benefit of his good character.

3. By the word “district,” as used in the section named, is not meant the judicial district, but that portion of the territory of the state over which a court may, at a particular sitting, exercise power in criminal matters. Olive v. State, 7 N. W. 444, 11 Neb. 1.

4. The word “district,” as used therein, may, and generally does, refer to the county where the crime is supposed to have been committed, but also includes any and all territory by law attached to such county for judicial purposes.

5. The constitutional right to a trial before a jury of the county or district where the crime is alleged to have been committed is a mere personal privilege of the accused, and not conferred upon him from any considerations of public policy.

6. It follows that such right may be waived by the accused, and, in practice, will be held to be waived by an application for a change of venue under the provisions of the Criminal Code.

Error to district court, Antelope county; Robinson, Judge.

Petition, on the relation of Barrett Scott, for a writ of habeas corpus, against J. G. Crinklaw, sheriff of Antelope county. The petition was denied, and relator brings error. Affirmed.

Brome & Jones and R. A. Dickson, for plaintiff in error.

N. D. Jackson and Geo. H. Hastings, Atty. Gen., for defendant in error.

POST, J.

The plaintiff in error, who had previously been arrested on an indictment found by the grand jury of Holt county, within the fifteenth judicial district, charging him with the crime of embezzlement, applied to the district court of said county for a change of venue to some other county of the same district. His application was by motion, on the ground that a fair and impartial trial could not be had in Holt county. The court found the showing accompanying said motion to be sufficient, and that the prisoner was entitled to a change of venue, and accordingly ordered the place of trial to be changed to Antelope, an adjoining county, within the ninth judicial district. The prisoner, still insisting upon a change of venue, excepted to the order naming as the place of trial a county outside of the fifteenth district. Subsequently, having been delivered to the sheriff of Antelope county, and committed to the jail therein, he applied to Judge Robinson, of the ninth district, for a writ of habeas corpus, alleging that he was illegally imprisoned in the last-named county. He asked to be discharged on the ground that the order of the district court of Holt county was without authority, and void, and conferred upon the court of Antelope county no jurisdiction over his person, or of the prosecution against him. Upon a final hearing the writ was denied, and the prisoner remanded to jail, whereupon the cause was removed into this court by petition in error. The error assigned is the denial of the writ of habeas corpus, and presents for consideration a single question, viz. did the district court of Holt county, in changing the place of trial to a county of another district, exceed its jurisdiction?

The writ of habeas corpus is not a corrective remedy, and is never allowed as a substitute for an appeal or writ of error. If, therefore, the order in question was unauthorized by law, or is erroneous, in the sense that the remedy therefor is in the usual course by appellate proceedings, the writ was properly denied. The reliance of the plaintiff in error is upon the provision contained in section 11 of our bill of rights, viz.: “In all criminal prosecutions the accused shall have the right to a * * * speedy public trial, by an impartial jury of the county or district in which the offense is alleged to have been committed.” The provision of the Criminal Code, for change of venue, is found in section 455, viz.: “All criminal cases shall be tried in the county where the offense was committed, unless it shall appear to the court by affidavit that a fair and impartial trial cannot be had therein, in which case the court may direct the person accused to be tried in some adjoining county.” Naturally, the first inquiry suggested in this connection is the interpretation to be given the word “district,” in the section of the bill of rights above quoted. Counsel for plaintiff in error insist that, according to the natural and only reasonable...