State v. Kennie
| Decision Date | 26 March 1900 |
| Citation | 60 P. 589,24 Mont. 45 |
| Parties | STATE ex rel. JACKSON v. KENNIE, Justice, et al. |
| Court | Montana Supreme Court |
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: 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 former proceeding that the appeal may be entertained from the order in so far as it denied this writ.
There is no provision in the habeas corpus act (Pen. Code, §§ 2740-2772) upon the subject of appeal, nor is there any such provision in the title in the Penal Code under which this proceeding is classified. This title (title 12, c. 1, pt. 2) classifies the writ of habeas corpus as a special proceeding of a criminal nature. Following out of the idea suggested by this classification, in the absence of a right of appeal provided for in the title treating of this proceeding, we naturally and properly turn to the general provisions of the Penal Code, allowing appeals in criminal cases, to find if the right is provided for there. These we find in sections 2270-2273, inclusive. Section 2270 provides that "an appeal to the supreme court may be taken by the defendant, as a matter of right, from any judgment against him." Section 2272 allows an appeal to the defendant (1) from a final judgment of conviction; (2) from an order denying a motion for a new trial; and (3) from an order after judgment affecting the substantial rights of the party. Section 2273 enumerates the instances in which the state may appeal. Bearing in mind the rule that an appeal is a creature of the statute, and is allowable only where the order or judgment sought to be reviewed by this means is fairly covered by its terms (In re Tuohy's Estate, 23 Mont. 305, 58 P. 722), we must conclude that the foregoing provisions have no reference to habeas corpus proceedings, unless the order made therein can be designated as a "final judgment," and the complainant can be properly denominated a "defendant." That this latter term is not a proper designation for the petitioner in a habeas corpus proceeding is clear from section 2890 of the Penal Code, which provides that "the party prosecuting a special proceeding of a criminal nature is designated in this Code as the complainant, and the adverse party as the defendant." A party cannot for the purpose of instituting a proceeding be the complainant, and for the purpose of prosecuting an appeal in the same proceeding shift his position to that of the defendant. Nor is the determination of a court or judge in this proceeding adverse to the complainant properly designated by the term "judgment," within the meaning of the foregoing provisions. Obviously, the judgment mentioned in section 2270 is the final judgment or other order referred to in section 2272, and embraces only those judgments and orders which become res adjudicata and final as to all matters involved in the controversy. And the rule has generally been adopted that an order denying a writ of habeas corpus is not such a judgment as to render the rights of the petitioner res adjudicata, and finally to conclude him. This was the rule at common law. Rex v. Suddis, 1 East, 306; Church, Hab. Corp. § 386. It is so held in California, Missouri, Illinois, Pennsylvania, Massachusetts, and North Dakota. Ex parte Perkins, 2 Cal. 424; In re Ring, 28 Cal. 247; Howe v. State, 9 Mo. 690; Hammond v. People, 32 Ill. 446; Ex parte Thompson, 93 Ill. 89; Com. v. Jones, 3 Serg. & R. 158; Com. v. Blatt, 165 Pa. St. 213, 30 A. 674; Bradley v. Beetle, 153 Mass. 154, 26 N.E. 429; Carruth v. Taylor (N. D.) 77 N.W. 617. This was formerly the rule in New York. People v. Brady, 56 N.Y. 182. An appeal is now allowed in that state by statute. Church, Hab. Corp. § 386.
From these considerations, it is clear that from an order denying the writ and remanding the prisoner no appeal lies, under any of the foregoing provisions of the Penal Code. It is equally clear that the appeal does not lie under any provision of the Code of Civil Procedure. Section 1722 of that Code, as amended by Act 1899, p. 146, provides only for appeals in civil cases, and has no application to any matter contained in the Penal Code. This is made clear by reference to section 1720 of...
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