Wisener v. Burrell

• Decision Date: 14 April 1911
• Citation: 118 P. 999,28 Okla. 546
• Parties: WISENER, Sheriff, v. BURRELL.
• Court: Oklahoma Supreme Court

118 P. 999

28 Okla. 546

WISENER, Sheriff, v. BURRELL.

Supreme Court of Oklahoma

April 14, 1911

Syllabus by the Court.

An appeal does not lie from an order in habeas corpus discharging a party held for extradition for a criminal offense.

(Additional Syllabus by Editorial Staff.)

"Privilege" means special enjoyment of a good, or exemption from an evil or burden.

"Suspended" is defined as temporarily inactive or inoperative; held in abeyance.

Error from Superior Court, Muskogee County; Farra L. McCain, Judge.

Application by Hugh A. Burrell for writ of habeas corpus to John L Wisener, Sheriff. Relator discharged, and defendant brings error. Dismissed.

Williams J., dissenting.

E. G. McAdams, for plaintiff in error.

Kistler & Haskell, for defendant in error.

DUNN J.

This case presents error from the superior court of Muskogee county. Defendant in error, being held for extradition for a criminal offense under a warrant in the hands of plaintiff in error, acting as sheriff in that county, secured his release by a writ of habeas corpus issued out of the said court. The sheriff has undertaken to bring the case here for review, to secure a reversal of the judgment discharging his prisoner.

Three questions of practice going to the jurisdiction of this court are presented by counsel for defendant in error which are: First, that decisions in habeas corpus are not reviewable on error or appeal; second, that the grounds upon which the defendant in error was held were criminal, and that therefore this case is a criminal case, and, if appeal lies, it is to the Criminal Court of Appeals, and not to this court; and, third, that the sheriff has no such interest as will entitle him to maintain an appeal.

Decisions from appellate courts all over the nation are cited by counsel for both parties to sustain and defeat these various contentions, and an investigation of the authorities shows a sharp conflict among them; but a careful consideration of the reasoning of authorities dealing with the first proposition convinces us that the ground there taken is sound, and that in this state an appeal from a decision in habeas corpus, discharging a person held, as in the case at bar, does not lie. To support this view, attention is called to the following texts and authorities: Church on Habeas Corpus (2d Ed.) § 386; 2 Spelling on Extraordinary Relief, § 1355; Knowlton v. Baker, 72 Me. 202; Mead v. Metcalf, 7 Utah, 103, 25 P. 729; In re Barker, 56 Vt. 1; State ex rel. v. Houston, 30 La. Ann. (part 2) 1174; In re Strickland & Alford, 41 La. Ann. 324, 6 So. 577; Ex parte Coston, 23 Md. 271; Howe v. State, 9 Mo. 690; Ferguson v. Ferguson et al., 36 Mo. 197; Ex parte Jilz, 64 Mo. 205, 27 Am. Rep. 218; Hammond v. People ex rel. Vacaro, 32 Ill. 446, 83 Am. Dec. 286; Ex parte Thompson, 93 Ill. 89; Skinner v. Sedgbeer, 8 Kan. App. 624, 56 P. 136; People v. Conant, 59 Mich. 565, 26 N.W. 768; People v. Fairman, 59 Mich. 568, 26 N.W. 769; State v. Grottkau, 73 Wis. 589, 41 N.W. 80, 1063, 9 Am. St. Rep. 816; State v. Miller, 97 N.C. 451, 1 S.E. 776; In re Clasby, 3 Utah, 183, 1 P. 852; Wyeth v. Richardson, 10 Gray (Mass.) 240; Ex parte White, 2 Cal.App. 726, 84 P. 242; Ex parte Johnson, 1 Okl. Cr. 414, 98 P. 461. See, also, note to case of Bleakley v. Smart, 74 Kan. 476, 87 P. 76, reported in 11 Am. & Eng. Ann. Cas., at page 129. The foregoing is by no means a complete list of the authorities in support of this proposition, as many additional ones appear in the note referred to and in the cases.

In the discussion of the cases of Ex parte Johnson, supra, Judge Doyle, of the Criminal Court of Appeals of this state, takes note of the fact that no specific provision is made in the statute for appeals in this class of cases, and concludes that, had it been intended to provide for appeals, some proper provision would have been made. Discussing the same, he uses the following language: "The courts of several states have held that the decisions in habeas corpus cases are not reviewable under a general law allowing an appeal from all final judgments. See Howe v. State, 9 Mo. 690; Ex parte Jilz, 64 Mo. 205, 27 Am. Rep. 218; Carruth v. Taylor, 8 N. D. 166, 77 N.W. 617; People v. Conant, 59 Mich. 565, 26 N.W. 768. In some states the right of appeal has been expressly granted by legislative enactments; in other states the courts hold that a decision in a habeas corpus proceeding is appealable under a statute which gives an appeal from a final order affecting a substantial right, made in a special proceeding. See State v. Buckham, 29 Minn. 462, 13 N.W. 902, and Winton v. Knott, 7 S. D. 179, 63 N.W. 783. By virtue of a provision of section 21 of the 'Enabling Act' (Act June 16, 1908, c. 3335, 34 Stat. 277), all laws in force in the territory of Oklahoma at the time of the admission of Oklahoma as a state were extended over and put in force throughout the state, except as modified or changed by the 'Enabling Act,' or by the Constitution of the state. Thus the adoption of the habeas corpus statutes of the territory of Oklahoma was only so far as the same were not repugnant to, or in conflict with, the Constitution of the state. Had it been intended to provide for appeals in habeas corpus, some appropriate provision would have been made. Its omission affords the best evidence to the contrary, and, if anything is wanting to remove all doubt, it will be found in the nature and object of this great writ as a constitutional right; its purpose being to afford a speedy remedy to a party unjustly accused of the commission of a crime, without obstructing or delaying public justice, both of which appeals would be defeated by the delays consequent upon an appeal. Any other rule would operate practically to subvert the constitutional safeguards and the fundamental rights of the citizen."

And discussing the same question, Chief Justice Shaw, of the Supreme Judicial Court of Massachusetts, in the case of Wyeth v. Richardson, supra, says: "The general principles of law are opposed to the allowance of exceptions in this case. The great purpose of the writ of habeas corpus is the immediate delivery of the party deprived of personal liberty. The allowance of exceptions would be inconsistent with the object of the writ. The consequence of allowing exceptions must be, either that all further proceedings be stayed, which would be wholly inconsistent with the purpose of the writ. ***"

To the same effect is the language of Chief Justice Smith, of the Supreme Court of North Carolina, in the case of State v. Miller, supra: "Proceedings under the writ of habeas corpus, which have for their principal object a release of a party from illegal restraint, must necessarily be summary and prompt, to be useful, and, if action could be arrested by an appeal, would lose many of their most beneficial results."

To the same point, Chipman, P.J., in the case of Ex parte White supra, said: "Having in mind the original purpose of the...