Swanson v. Jones
| Decision Date | 10 November 1949 |
| Docket Number | 32683. |
| Citation | 39 N.W.2d 557,151 Neb. 767 |
| Parties | SWANSON v. JONES. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. If the facts well pleaded in a petition for a writ of habeas corpus are insufficient to entitle the petitioner to the relief sought, it is the duty of the court to refuse to issue a writ.
2. The sufficiency of a petition to support a writ of habeas corpus may be determined by the court before a writ is issued, and if it is not sufficient to warrant a discharge of the person alleged to be illegally restrained of his liberty a writ may be denied.
3. The remedy of habeas corpus is not demandable of course, but legal cause must be shown to entitle a petitioner to the benefit of it.
4. Habeas corpus is a collateral, not a direct proceeding when regarded as a method of attack of a judgment imposing a sentence for a crime, and facts, as distinguished from legal conclusions, are required to be alleged to negative the legal force and effect of the judicial record.
5. To obtain a release from a sentence and commitment for a crime by habeas corpus, the sentence must be void.
6. Habeas corpus is not available to discharge a prisoner from a sentence of penal servitude if the court imposing it had jurisdiction of the offense and of the person charged with the crime, and the sentence was within the power of the court.
7. The failure to give a preliminary examination to a person charged with a crime is not a jurisdictional defect and is waived if not complained of before a plea of not guilty to the charge is made in the district court.
8. The remedy of habeas corpus is not available in the absence of a statute authorizing it for the purpose of inquiring into the legality of a particular form, manner, or place of confinement executively or administratively imposed upon a prisoner lawfully in custody in an authorized place under a valid sentence and commitment.
Henry A. Swanson, pro se.
James H. Anderson, Atty. Gen., Walter E. Nolte, Asst. Atty. Gen for appellee.
Heard before SIMMONS, C. J., CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.
The district court for Lancaster County found that the petition of appellant for a writ of habeas corpus did not allege sufficient facts to justify the issuance of a writ, and entered a judgment of dismissal. This is an appeal from that adjudication.
The petition is the only pleading in this case. It was the right and duty of the court to deny the petition and dismiss the case if the facts well pleaded therein, when accepted and considered as true, were insufficient to entitle appellant to a writ of habeas corpus. In re Application of Dunn, 150 Neb. 669, 35 N.W.2d 673; Jackson v. Olson, 146 Neb. 885, 22 N.W.2d 124 165 A.L.R. 932; Alexander v. O'Grady, 137 Neb. 645, 290 N.W. 718, certiorari denied, 311 U.S. 682, 61 S.Ct. 59, 85 L.Ed. 439. The sufficiency of the allegations of a petition to support a writ of habeas corpus may be examined and determined by the court before a writ is issued or a pleading made by the person charged with the unlawful detention, and if they are not sufficient to require a discharge of the petitioner, a writ may be denied. McAvoy v. Jones, 149 Neb. 613, 31 N.W.2d 740; Alexander v. O'Grady, supra. Such a writ is not demandable of course, but legal cause therefor must be shown as a prerequisite of judicial action favorable to petitioner. In re Application of Dunn, supra.
Appellant alleges that he did not have a lawful preliminary hearing, as required by law, because the acting county judge of the county court of Dawson County who presided at the hearing in that court on a charge that appellant had committed first degree murder was a brother and partner in the practice at law of W. M. Cook, who about a week after appellant was bound over to the district court for trial was appointed to and did assist the county attorney in the trial of the case in the district court; that there was no indictment of appellant by a grant jury, and the filing of an information is by law prohibited until there has been a lawful preliminary hearing of the charge against the accused that he is unlawfully imprisoned and restrained of his liberty by appellee in the Nebraska State Penitentiary without due process of law on a conviction for first degree murder in a court without jurisdiction, and he was tried and convicted with such expedition as to deprive him of reasonable preparation for his defense, effective assistance of counsel, the presentation of his defense on the trial, and a fair trial; that after appellant was charged and taken into custody on October 25, 1939, he employed (A. J.) Shafer and (Dora) Nelson of Holdrege to represent him, and his father, without his knowledge, engaged 'Attorney McNerny' (Bernard McNeny of Red Cloud) to defend him, and when Shafer learned this he withdrew, that McNeny was disabled by sickness for three weeks prior to November 11, 1939, and died November 14, 1939, the day before the commencement of the trial of appellant in the district court; that the information was filed and served on November 10, 1939; that three days afterwards appellant made application for a postponement of the time of trial for at least six weeks because of the sickness of his counsel, Mr. McNeny, and the necessity of time to prepare for trial; that the application for continuance was denied and the case set for trial commencing November 15, 1939; that appellant was deprived of his constitutional right to a fair trial, his right to counsel, his right to effective assistance of competent counsel, and time and opportunity for preparation for trial as required by due process of, and equality before, the law guaranteed by the Constitution of the United States and the laws of Nebraska; that when appellant was put on trial, less than three weeks after the charge was first made against him, under the circumstances, he had no lawyer in 'any practical sense'; that Miss Nelson was not qualified, experienced, or competent, and did nothing to defend him; that (L. A.) Sprague was a son-in-law of Mr. McNeny, had been busy with his sickness and death, did not know appellant, was unprepared for trial, had no consultation with appellant, was not acquainted with the case, did not know the people involved or the witnesses, and elected to defend on the claim of insanity of appellant when he was not insane, instead of self-defense; that William A. Stewart, Jr., appeared at the trial, said he was engaged by Sprague, had not been paid as promised, and that was about all the connection he had with the case; that appellant was held in jail without bail, and was not responsible for the tangle of circumstances, but he was put on trial for a capital offense less than three weeks after the charge was filed, and deprived of any preparation or...
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