Ex parte Phillips

7 Kan. 48

• Court: Supreme Court of Kansas
• Decided: January 15, 1871
• Status: Published

Opinion

By the Court,

Brewer, J.:

The petitioner alleges that he is unlawfully restrained of his liberty, and asks the interposition of this'court to release him. Do the petition and the record of the proceedings in the district court present a case which calls for the interposition of this court by habeas corpus ? This court has original jurisdiction in habeas corpus proceedings; but in such cases has no greater power than any other court having jurisdiction in habeas corpus, to inquire into the regularity of proceedings upon which a person is restrained of his liberty. It is not every improper, illegal restraint of liberty that can he inquired into on habeas corpus. The limits beyond which no court can go, are fixed by statute. Section 671 of our civil code, (Gen. Stat., 763,) reads thus : “ No court or judge shall inquire into the legality “ of any judgment or process whereby the party is in “ custody, or discharge him, when the term of commit“ment has not expired in ^fiber of the cases following: “ * * * Fourth: Upon a warrant or commitment issued “ from the district court, or any other court of competent “jurisdiction, upon an indictment or information.”

The plain import of this language forbids an inquiry (at this time) into the alleged errors in the proceedings of the district court. An information was filed; it still remains; no verdict or judgment was ever returned, or rendered thereon. If the discharge of the jury has the effect claimed by counsel for petitioner, (anduponthatpoint we express no opinion,) it can be shown upon the trial of the ease. If the judgment of the district court upon this point, and the result of the trial, shall be adverse to the petitioner, he can then present the question regularly to this court on appeal. As sustaining this construction, see: The Commonwealth v. Norton, et al., 8 Serg. & Rawle, 71; Wright v. The State, 5 Ind., 290; The People v. Ruloff, 5 Parker’s Cr. Rep., 83.

The writ of habeas corpus is refused.

All the Justices concurring.