State v. Gordon

• Decision Date: 16 June 1913
• Docket Number: 16,714
• Citation: 62 So. 431,105 Miss. 454
• Court: Mississippi Supreme Court
• Parties: STATE v. W. A. GORDON

62 So. 431

105 Miss. 454

STATE v. W. A. GORDON

No. 16,714

Supreme Court of Mississippi

June 16, 1913

APPEAL from the circuit court of Lee county, HON. CLAUDE CLAYTON Judge.

From an order admitting relator, W. A. Gordon, to bail in a habeas corpus proceeding, the state and sheriff appeals.

The facts are fully stated in the opinion of the court.

Motion overruled.

Anderson & Long, for appellant.

Has either the state, or the sheriff and jailor, or both the right to prosecute an appeal in this case? The circuit judge who tried the habeas corpus in this case denied an appeal to the state on the authority of the cases of the State v Keys, 93 Miss. 115; State v. Shrader, 72 Miss. 541.

In the Key case both the state and the defendant were ready for trial, but on account of the press of business the court refused to enter upon the trial, and the district attorney and the attorneys representing the defendant having agreed that the defendant should have bail in the sum of ten thousand dollars, the court accordingly granted bail. The attorney general appealed on behalf of the state, and the supreme court held that under section 40, Code of 1906, the appeal was not maintainable. As to whether the state would have had the right to appeal in that case, under section 36, Code 1906 was not considered, nor passed upon by the supreme court; neither was the question whether or not the sheriff or jailor who had the custody of the defendant, would have had the right to appeal.

Furthermore in the Key case the bail granted by the court was the result of an agreement between the district attorney and the attorneys representing the defendant. Bail was not granted in that case on a petition for and writ of habeas corpus. Judge WHITFIELD, who delivered the opinion of the court, it is true, used this broad language: "The state is not allowed to appeal in a criminal case except in the specific instances named in Code 1906, section 40."

Then he states that, manifestly that appeal was not authorized by said section 40. The only difference between the Key case as stated above, the judge allowed bail as the result of the agreement of the attorneys representing the state and the defendant. It appears clear from the Shrader case that bail was not granted as the result of a habeas corpus trial. In the Shrader case, as in the Key case, the court held that under section 39, Code, 1892, which corresponds to section 40, Code of 1906, the appeal was unauthorized. In the Shrader case as in the Key case, the appeal was alone by the state and not by the officer having the custody of the prisoner. Clearly both of these cases were decided right.

The case in hand is distinguished from both the Key and the Shrader cases in two important respects, viz.: This is an application for an appeal from a judgment on a writ of habeas corpus and it is also an application for an appeal, both by the state in the name of its district attorney and county attorney, and by the sheriff and jailer who had the custody of the defendant, and from whose custody the defendant was taken by such judgment. Section 36, Code of 1906, was not considered in the Shrader case, nor in the Key case. That statute provides: "Any party aggrieved by the judgment on the trial of a habeas corpus, shall have an appeal to the supreme court. If any person held in service by this state or by the United States, should be discharged by any judge in vacation, or any court, on habeas corpus, the attorney-general or any district attorney, or any attorney duly authorized by the United States, may in like manner obtain an appeal to reverse the judgment by which such person was discharged."

First we will consider what the language "held in service by the state" means. We contend that it covers this cause: that the defendant in this case was "held in service," that it means, held in custody on a criminal charge. If we are right about this, of course this appeal is maintainable.

We contend, second, that under the first clause of this statute which gives any party aggrieved the right to appeal, the sheriff and jailor who had the custody of the defendant in this case is given the right to appeal. Certainly either the state or the sheriff and jailer, or both, ought to have the right to appeal in a case of this kind. If the right of appeal does not exist, it simply means that one may be guilty of a most brutal murder, or any other capital offense, and if he can find a circuit judge or chancellor, who is willing to let him go scott free, either with or without bond, the state is without a remedy.

We submit, furthermore, that habeas corpus proceedings of this kind is not a criminal case, in the true sense, and if it is not of course there is no trouble about the right of the state, or the sheriff, or both, to appeal. Assuming that the right of appeal exists did the circuit judge err in granting bail. It seems in view of the uncontradicted testimony it is not necessary to discuss this proposition. Insanity was the sole defense. There was no pretense whatever of any other defense. The only witness introduced in behalf of the defendant, for the purpose of showing insanity was his wife Mrs. Mary Gordon. The court need only to read her testimony. We submit that it does not tend in the remotest degree to establish insanity. The sole purpose of her testimony was to bring into the case what is commonly referred to as the "unwritten law," which has set so many guilty free. The testimony in Jones v. State, 97 Miss. 269, for the purpose of showing insanity was very much stronger than the testimony in this case. In that case the supreme court said that the court below committed no error in ruling out the testimony offered to show insanity, because it did not tend to show it.

In view of the fact that there must be another trial of this case, we insist that the supreme court in deciding this case should pass on the question whether or not the court below erred in admitting the testimony which it did admit for the purpose of showing insanity.

J. E. Rankin, for appellants.

If this is not a criminal case, section 40 of the Code of 1906 does not govern, and the cases of State v. Key, 93 Miss. 115, and State v. Shrader, 72 Miss. 541, have no application.

A criminal case is "an action, suit or cause instituted to punish an infraction of the criminal law." Black's Law Dictionary, p. 302. This case was not instituted to punish an infraction of the criminal law. It was instituted by the appellee, not to punish an infraction of the criminal law, but to secure his own release from jeopardy.

The distinction between a criminal case and a habeas corpus is recognized by section 64 of the Code of 1906. For it is there said that "An appeal from a judgment on the trial of a writ of habeas corpus may be had by or in behalf of the person deprived of his liberty on the same terms and conditions provided for in criminal cases." This evidently means persons who are held in service on criminal charges, and makes a distinction between habeas corpus proceedings in such cases and criminal proceedings, or cases. Later on in the same section provision is made for appeal in "all other cases" tried on a writ of habeas corpus.

If this is not a criminal case, section 36 of the Code of 1906 governs, and under it the state is given the expressed authority to appeal in cases of this kind.

Under this section, also, the sheriff and jailer who had the custody of the appellee are given the right to appeal from the judgment of the lower court.

Geo. H. Ethridge, assistant attorney-general, for the state.

It seems to me that there can be no question that this is a civil proceeding, and I submit that the great weight of authorities sustain the contention that the habeas corpus is a civil remedy given in such cases.

In the case of Ex parte Tom Tong, 108 U.S. 550, 27 L.Ed. 826, the Supreme Court of the United States pronounced habeas corpus a civil proceeding. A criminal proceeding is a proceeding to determine questions with the view of inflicting punishment. On this proposition the court says. Book 27 U.S. (L. Ed.), 827: "The writ of habeas corpus is the remedy which the law gives for the enforcement of the civil right of personal liberty. Resort to it sometimes becomes necessary, because of what is done to enforce laws for the punishment of crimes; but the judicial proceeding under it is not to inquire into the criminal act which is complained of, but into the right to liberty notwithstanding the act. Proceedings to enforce civil rights are civil proceedings, and proceedings for the punishment of crimes are criminal proceedings. In the present case the petitioner is held under criminal process. The prosecution against him is a criminal prosecution, but the writ of habeas corpus which he has obtained is not a proceeding in that prosecution. On the contrary, it is a new suit brought by him to enforce a civil right, which he claims, as against those who are holding him in custody under the criminal process. If he fails to establish his right to liberty, he may be detained for trial for the offense; but if he succeeds, he must be discharged from custody. The proceeding is one, instituted by himself for his liberty, not by the government to punish him for his crime. Also, see: In re Reynolds, 20 F. Case number 11721; State v. Collins, 54 Iowa 441; Drum v. Keen, 47 Iowa 435.

In relation to what the attorneys for the appellee have stated I desire to say that in certain cases it is important for the state to know by a decision of this court whether the facts warrant the enlargement of the prisoner on bail. In the case of State v. Key, cited in the briefs of both the appellant and the appellee the court here declared that the order of the court below was void....