State v. Grace
| Decision Date | 01 January 1873 |
| Parties | STATE OF MINNESOTA ex rel. ELLA HOWARD and another v. JOHN GRACE, Sheriff, etc. |
| Court | Minnesota Supreme Court |
F. R. E. Cornell, Atty. Gen., for the State.
The proceedings upon which these relators were committed were taken under chapter 71 of the Laws of 1868. The petition for this writ of habeas corpus states that Mary Monti had been arrested and brought before the police justice of St. Paul, charged with manslaughter in the second degree, and upon examination was held to answer the same at the next May term of the district court for Ramsey county. If this were so, and the return contains nothing to the contrary, we think that a prosecution for felony was pending in the said district court, within the said statute, although, as is also alleged in the petition and not controverted, no return had been made by said justice of the examinations and recognizances taken by him, and which, indeed, he was not bound to return till the first day of said term. Gen. St. c. 106, § 24.
A prosecution is pending, in the sense in which our statutes use the words, from the commencement of proceedings before a magistrate against a person charged with a public offense, under Gen. St. c. 106; and where such person has been held to answer in the district court, the prosecution is thenceforward pending in that court.
By Gen. St. c. 92, § 7, when a person is held to answer for a public offense, if an indictment is not found against him at the next term of the court at which he is held to answer, the court shall order "the prosecution" to be dismissed, unless good cause to the contrary is shown.
Unless there were a prosecution pending in the district court, there would be no occasion for its dismissal thence. Section 8 provides that if a defendant indicted for a public offense, whose trial has not been postponed upon his application, is not brought to trial at the next term of the court in which the indictment is triable after it is found, the court shall order the indictment dismissed, unless good cause be shown to the contrary; but by section 9, if he be not indicted, or tried, as provided in sections 7 and 8, and sufficient reason is shown therefor, the court may order the "action" to be continued from term to term; and by section 10, if the "action" is dismissed, the defendant shall be discharged. That is to say, the law considers that an action is pending in the district court before indictment found; and in this action the indictment is styled the first pleading on behalf of the state (Gen. St. c. 108, § 1) just as the complaint is the first pleading on behalf of the plaintiff in a civil action.
We discover nothing in the phraseology of the particular law now before us to warrant the conclusion that it intends, in opposition to the General Statutes, that a prosecution is not pending in the district court till an indictment has been found.
Upon the facts before us, then, the case existed in which, by said statute, if the county attorney made and filed his affidavit in said court, setting forth that any person was a material witness on the part of the state in such prosecution, and that he had good reason to believe that such person would leave the state before the trial of such prosecution and not return or be present at the time of such trial, the court might order such person to be brought before it, and if in its judgment the circumstances of the case or the interests of the state warranted such proceeding, might require such person to enter into a recognizance, with or without surety, as it might direct; and if such person should refuse or neglect to comply with such order, might commit such person to the common jail till the trial be had, or such person be discharged according to law.
From the return to the writ it appears that upon these relators being brought before the court in pursuance to its order therefor, made upon the application of the county attorney, and his affidavit made and filed as in the return set forth, the only fact inquired into was their ability to give bail, and that they were committed upon its decision that they were unable to give bail, although they offered to enter into their own recognizances for their attendance.
We agree with the relators' counsel that this is not a correct construction of the statute. The affidavit authorizes the arrest of the alleged witness, and the bringing him before the court; but when he is before the court it is to decide whether or not, in its judgment, the facts exist which will warrant it in requiring him to enter into a recognizance, either with or without sureties; that judgment, however, is to be exercised upon evidence to be adduced at the hearing.
It is also to be considered, we think, from...
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State v. Dlugi
...court. Sections 5251, 5381, R.L. 1905. Thereafter the prosecution initiated by such examination is pending in the district court. State v. Grace, supra. The fact that a prosecution for adultery had commenced against defendant and was then actually pending, was a matter of record in the dist......