State v. Olsen, 5993

• Decision Date: 16 October 1933
• Docket Number: 5993
• Citation: 53 Idaho 546,26 P.2d 127
• Parties: STATE, Respondent, v. C. C. OLSEN, Appellant
• Court: Idaho Supreme Court

26 P.2d 127

53 Idaho 546

STATE, Respondent, v. C. C. OLSEN, Appellant

No. 5993

Supreme Court of Idaho

October 16, 1933

HABEAS CORPUS-PETITION, FUNCTION OF-RETURN.

1. Function of petition for habeas corpus is to secure issuance of writ, and, when writ is issued, petition has accomplished its purpose (I. C. A., sec. 19-4312).

2. Court properly quashed habeas corpus writ where return showed petitioner was not, and never had been, in custody (I. C. A sec. 19-4312).

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. Wm. A. Babcock, Judge.

Proceeding by C. C. Olsen for a writ of habeas corpus to be directed to E. F. Prater, sheriff of Twin Falls county. From an order denying the writ Olsen appeals. Affirmed.

Affirmed.

Chapman & Chapman, for Appellant.

Cite no authorities on points decided.

Bert H Miller, Attorney General, and Ariel L. Crowley, Assistant Attorney General, for Respondent.

In the absence of a traverse to a return, the only question for determination is whether or not the facts stated in the return, as a matter of law, authorize the restraint under investigation. (Allen v. Williams, 31 Idaho 309, 171 P. 493; 29 C. J. 164, 165; Moore v. United States, 159 F. 701, 86 C. C. A. 569.)

HOLDEN, J. Morgan, J., concurs, WERNETTE, J., Budge, C. J., and Givens, J., Concurring Specially.

OPINION

HOLDEN, J.

October 17, 1932, a criminal complaint was filed in the probate court of Twin Falls county charging appellant with the crime of larceny in an alleged sale of certain mortgaged personal property, without the consent of the mortgagee. A warrant of arrest thereupon issued. December 5, 1932, appellant was arrested, taken into court and arraigned, and admitted to bail. On that day bail bond was filed. December 14, 1932, an amended criminal complaint was filed in that court charging the appellant with the crime of larceny in the alleged removal of the mortgaged personal property from Twin Falls county, without the consent of the mortgagee holder, and a preliminary examination was had and an order made holding the appellant to answer and continuing the bond.

January 7, 1933, appellant filed his petition for a writ of habeas corpus in the district court of Twin Falls county. And on the same day an order was made granting the writ, and the writ issued, and an order was also made admitting the appellant to bail, and the bail bond filed pursuant to the last-mentioned order. January 9, 1933, E. F. Prater, sheriff, to whom the writ was directed, made and filed the following return:

"In the Matter of the Application for a writ of Habeas

Corpus for C. C. OLSEN.

"E. F. Prater, Sheriff of Twin Falls County, State of Idaho, makes the following Return to the Writ of Habeas Corpus issued by the above Court in behalf of C. C. Olsen, the defendant:

"I am and at all times herein mentioned have been the duly elected, qualified and acting Sheriff of Twin Falls County, State of Idaho;

"That on the 7th day of January, 1933, the defendant, C. C. Olsen, and his two bondsmen and one of his attorneys, Marshal Chapman, and Frank J. Smith, Clerk of this Court, came to my office and said attorney informed me said bondsmen were surrendering said Olsen to me; whereupon, said Frank Smith, Clerk, served on me the Writ in question, and the attorney then and there, at that time, informed me a new bond was being executed, and all parties hereinbefore named left, and I have not seen C. C. Olsen since, nor was he, nor has he been in my custody, other than herein recited.

"Said Olsen is not in my custody and never has been, other than as hereinbefore recited, and by reason thereof I am unable to deliver into this Court the body of C. C. Olsen, as required by said Writ, but make this report to Your Honor.

"Affiant further says, that he holds no Order of Commitment issued to him by the Probate Judge of Twin Falls County, Idaho, but that there is an Order issued by said Court, a copy of which Order is hereto attached, but that the same has never been executed for the reason that said defendant, C. C. Olsen, has at all times since the issuance of said Commitment been at Liberty on bail, save and except as hereinbefore mentioned.

"Dated this 9th day of January, 1933.

"E. F. PRATER,

"Sheriff of Twin Falls County, Idaho."

The appellant did not file an answer to the return of the sheriff, as provided by sec. 19-4312, denying the matters set forth in the return, nor did the appellant except to the sufficiency thereof, or allege any fact to show either that his alleged imprisonment or detention was unlawful, or that he was entitled to his discharge.

January 9, 1933, the return was heard. No testimony was adduced or documentary evidence offered by the appellant. The respondent placed Frank J. Smith, clerk of the district court for Twin Falls county, on the stand, who testified, among other things, to the effect that appellant was then out on bail. January 14, 1933, the trial court made an order quashing the writ. The appeal is from that order.

The function of the petition is to secure the issuance of the writ, and, when the writ is issued, the petition has accomplished its purpose. (Ex parte Collins, 151 Cal. 340, ...