Welch v. Sheriff of Franklin County

• Decision Date: 26 July 1901
• Citation: Welch v. Sheriff of Franklin County, 50 A. 88, 95 Me. 451 (Me. 1901)
• Parties: WELCH v. SHERIFF OF FRANKLIN COUNTY. WARE v. SAME.
• Court: Maine Supreme Court

50 A. 88

95 Me. 451

WELCH

v. SHERIFF OF FRANKLIN COUNTY.

WARE

v. SAME.

Supreme Judicial Court of Maine.

July 26, 1901.

(Official.)

Report from supreme judicial court，, Franklin county.

Petitions of Charles A. Welch and Maynard H. Ware for writs of habeas corpus against the sheriff of Franklin county.Petitions certified.Petitions dismissed.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE.STROUT, SAVAGE, and POWERS, JJ.

E. O. Greenleaf, for petitioners.

H. S. Wing, Co. Atty., for sheriff.

POWERS, J.The petitioners were brought before a trial justice in Franklin county in April, 1901, charged with the crime of cheating by false pretenses.After hearing, the trial justice found probable cause to charge the accused, and ordered each of them to recognize in the sum of $300 for his appearance at the September term, 1901, of the supreme judicial court of Franklin county.

This they refused to do, and they were thereupon committed to Jail, from which commitment they now seek to be discharged on the ground that the magistrate could not order them to recognize for the September term, but only for the June term.

The act establishing the June term (Laws 1893, c. 222, § 2) enacted that it should be held for the transaction of civil business only, except for the trial of indictments found by a grand jury in attendance, and should be held without a grand jury unless a justice of this court should otherwise specially order.The limitation to civil business, and to the trial of indictments found at the same term, was stricken out by Laws 1897, c. 264, leaving simply the limitation that the term should be held without a grand jury unless otherwise specially ordered as above; and the same act further provided that when no grand jury should be in attendance all recognizances to the June term should be continued to the next term.

The result of this legislation is that criminal as well as civil business may be transacted at the June term, but that no grand jury is present unless specially ordered, and, in case no such special order is made, all recognizances to the June term are continued.If such an order were made, the June term would have cognizance of the offense with which the petitioners were charged; and, if not made, the September term next following would have cognizance of it.The petitioners, therefore, should have been ordered to recognize for their appearance at the June term, and the order made was invalid.Rev. St. c. 132, § 5, is but a condensation of Rev. St. 1821, c. 76, § 1, which in express terms confined the power of the magistrate in ordering bail to "require of the offender to find sureties to appear and answer for his offense at the supreme judicial court, or circuit court of common pleas, next to be held within or for the same county."

Should the prayer of the petitioners be granted?They are in confinement, charged with the commission of a felony, and are not entitled to the writ of habeas corpus as a matter of right.Rev. St. c. 99, § 5, par. 1.No grand jury was ordered for the June term, and the first term at which the charge can be investigated by the grand jury is the September...