Winnovich v. Emery

• Decision Date: 29 January 1908
• Citation: 93 P. 988,33 Utah 345
• Court: Utah Supreme Court
• Parties: WINNOVICH v. EMERY

93 P. 988

33 Utah 345

WINNOVICH v. EMERY

Supreme Court of Utah

January 29, 1908

APPEAL from District Court, Third District; Geo. G. Armstrong Judge.

Habeas corpus by Emil Winnovich against C. Frank Emery. From a judgment discharging petitioner, defendant appeals.

REVERSED.

Willard Hanson and Thos. Marioneaux for appellant.

P. P Christensen for respondent.

FRICK J. McCARTY, C. J., and STRAUP, J., concur.

OPINION

FRICK, J.

On the 15th day of June, 1907, a complaint in due form was filed before Joseph J. Williams, a justice of the peace of Salt Lake county, charging Emil Winnovich, the respondent in this appeal, with the crime of murder. He was duly arrested upon a warrant, and taken before said justice, who regularly proceeded to examine into the charge, and on the 18th day of June, 1907, after hearing the evidence adduced thereon, found that there was probable cause to believe that the accused, Emil Winnovich, had committed the crime of murder, and entered an order or judgment requiring the accused to appear before the district court of Salt Lake county, and to that end issued a mittimus or commitment directed to the sheriff of Salt Lake county, the appellant herein, to safely keep said accused and bring him before the district court of Salt Lake county to be dealt with according to law. The appellant accordingly held the respondent in custody in the common jail of Salt Lake county by virtue of said commitment. On the 26th day of June, 1907, the respondent presented his petition to George G. Armstrong, one of the district judges of Salt Lake county, wherein he alleged that he was unlawfully restrained of his liberty, and prayed that a writ of habeas corpus issue requiring appellant to show cause why he detained the respondent and restrained him of his liberty. Appellant duly produced the respondent in court as directed by said writ, and for cause of detention produced the commitment issued as aforesaid. On the 29th day of June following the petition was submitted to said district judge, sitting as a court, without argument. The evidence adduced at the hearing before the justice, duly certified to by him, was submitted to the court, together with the return of appellant as aforesaid. On the 9th day of July, 1907, the court granted the petition of respondent, upon the sole ground, as appears from the record, that "it does not appear to the court that there is sufficient evidence in the record to warrant the holding of defendant." The court accordingly entered an order or judgment discharging the respondent from the custody of appellant, and restored respondent to liberty. From the order or judgment, Emery appeals.

A motion to dismiss the appeal is interposed by respondent upon the grounds (1) that this is in effect an appeal by the state, and that the state has not the right to appeal in such a proceeding; (2) that, in any event, no appeal lies from habeas corpus proceedings in this state because the order or judgment of discharge is not a final judgment.

We will first examine into the first ground urged why this appeal should be dismissed, namely, that an appeal in this case is an appeal by the state. This brings up the question whether the proceedings are civil or criminal. We think there is little, if any room for doubt, in view of the authorities, that the proceedings are civil, and not criminal. The purpose is to protect or vindicate a civil right. The person is restrained of his liberty, and the purpose of the whole proceeding is to have that liberty restored to him at the earliest possible moment. When liberty is restored, the proceeding has accomplished its purpose, and no other or further consequences follow. That habeas corpus proceedings are civil, and the reasons why they are so, are well stated by Mr. Chief Justice Waite in Ex parte Tom Tong, 108 U.S. 556, 2 S.Ct. 871, 27 L.Ed. 826, where he says:

"The writ of habeas corpus is the remedy which the law gives for the enforcement of the civil right of personal liberty. Resort to it sometimes becomes necessary, because of what is done to enforce laws for the punishment of crimes, but the judicial proceeding under it is not to inquire into the criminal act which is complained of, but into the right to liberty notwithstanding the act. Proceedings to enforce civil rights are civil proceedings, and proceedings for the punishment of crimes, are criminal proceedings. In the present case the petitioner is held under criminal process. The prosecution against him is a criminal prosecution, but the writ of habeas corpus which he has obtained is not a proceeding in that prosecution. On the contrary, it is a new suit brought by him to enforce a civil right which he claims, as against those who are holding him in custody under the criminal process. If he fails to establish his right to his liberty, he may be detained for trial for the offense; but, if he succeeds, he must be discharged from custody. The proceeding is one instituted by himself for his liberty, not by the government to punish him for his crime."

In Cross v. Burke, 146 U.S. 82, 13 S.Ct. 22, 36 L.Ed. 896, Mr. Chief Justice Fuller, in passing upon the question, says: "It is well settled that a proceeding in habeas corpus is a civil, and not a criminal, proceeding." In support of this, he cites Farnsworth v. Montana, 129 U.S. 104, 9 S.Ct. 253, 32 L.Ed. 616; Kurtz v. Moffitt, 115 U.S. 487, 6 S.Ct. 148, 29 L.Ed. 458, and the Tong Case, above quoted from. We desire also to call special attention to the case of Ex rel. Durner v. Huegin, 110 Wis. 189, 85 N.W. 1046. In the case last referred to, as in this, the sheriff took the proceedings to the Supreme Court for review from an order or judgment by the lower court discharging the prisoner. That case is one of the best considered cases we can find upon the subject, and, as it so completely covers the whole ground with regard to habeas corpus proceedings, we refer the reader to that case. In re Foye, 21 Wash. 250, 57 P. 825, In re Baker, 21 Wash. 259, 57 P. 827, and In re Sylvester, 21 Wash. 263, 57 P. 829, are also cases in which the nature of the proceedings, the right of appeal, and kindred questions are discussed. Moreover, section 4510, Revised Statutes 1898, defines a criminal action thus: "The proceedings by which a person charged with a public offense is accused and brought to trial and punishment, is known as a criminal action." The section following provides that such actions shall be prosecuted in the name of the state of Utah as a party against the person charged with the offense, who, the next section provides, shall be designated as defendant. The person charged, therefore, is prosecuted by and in the name of the state. While in some proceedings, in their nature, civil, the name of the state may also be used, this in habeas corpus proceedings, as we hope to make clear, is wholly unnecessary and of no importance.

Having thus established that a proceeding in habeas corpus is civil what is its character under our system of procedure? Is it a suit, an action, or may it be classed as a special proceeding? It seems to us that there can be no doubt that it belongs to what, under the Code, are termed "special proceedings." This is also the conclusion reached by the courts who decided the cases above cited, as well as the conclusion reached by many of the courts. The conclusion is reinforced by the fact that the writ of habeas corpus, well known to the common law, did not receive the respect from the common-law courts its importance merited, and for that reason it was made more effective in the reign of Charles II by what is known as the "Habeas Corpus Act." Since then, to a large extent, it has been and now is regulated by statute. 21 Cyc. 283. In modern times habeas corpus may, therefore, be considered as a statutory proceeding, although it had its origin in the common law. Under the statute it may well be classed as a special proceeding. If it is, who are the parties to such a proceeding? In referring to our Code we find that section 3627, Revised Statutes 1898, provides as follows: "The party prosecuting a special proceeding may be known as the plaintiff, and the adverse party as the defendant." Who prosecutes in a habeas corpus proceeding? It is either the person restrained of his liberty, or some one in his behalf. He institutes the proceeding the same as he does any other, without leave from any one. Against whom is it directed? Against the person alone who deprives the applicant of his liberty. We thus have one who complains of some illegal act or acts attributed to another. We thus have a plaintiff. The person against whom the illegal acts are alleged is the defendant. The terms "plaintiff" and "defendant," therefore, are as proper and as applicable in a habeas corpus proceeding as they are in any other special proceeding. The plaintiff seeks to vindicate a legal right. The defendant opposes plaintiff's claims. That both claim under a special law cannot affect the matter one way or another. By section 3303, Revised Statutes 1898, it is provided that any party to a judgment may appeal therefrom; that on appeal the party appealing shall be known as appellant and the adverse party as respondent. It also provides that the title of the action or proceeding is not changed by an appeal. From all this it seems clear to us that a proceeding in habeas corpus is civil, that the applicant is the plaintiff and the party who restrains the applicant is the defendant. and that, on appeal, the one who appeals is the appellant, and the other the respondent. From this it follows that in this case no appeal is attempted by the state, but the appeal is taken and prosecuted by the sheriff, C. Frank Emery, the appellant, who, it was claimed in the petition for a...