The opinion of the court was delivered by
Reed, J.
The first five reasons assigned for the reversal of the order below, remanding the prosecutor, are directed against the sufficiency of the return made by the sheriff in matter of form. I say in matter of form, because it cannot be insisted with any degree of plausibility, that if the facts set [330]*330out in the sheriff’s return be true, the prosecutor was not properly in custody. The fact that he had been indicted, discharged on bail, surrendered by his surety, brought into court repeatedly for trial, and remanded to custody, all appear upon the face of the return, which includes the record of the proceedings of the Court of Oyer and Terminer and Quarter Sessions. The point of the objections is that these facts should appear more certainly, and in support of this view we are referred to section 15 of the Habeas Corpus act. The third subdivision requires that the person upon whom the writ of habeas corpus shall be served shall, in his return, if defendant be detained by any writ, warrant or other written authority, annex a copy thereof to said return, and the original shall be produced and exhibited on the return to the court or justice before whom the same is returned. This provision in another form is designed to secure the right of the defendant, first guaranteed by the fifth section of the Habeas Corpus act (31 Car. II.), to a copy of the warrant, commitment or detainer under which he is imprisoned. If the custodian neglects to return such warrant he can be ordered to do so by the judicial officer who issues the writ, and this order can be enforced by attachment. Rev., p. 470, § 18 ; Church on Habeas Corpus, § 124; State v. Raborg, 2 South. 545.
But the mere failure of such custodian to return a warrant, or the fact that his return is imperfect, does not operate to discharge the prisoner. The recognition of such a rule would place in the hands of negligent or corrupt jailers the power to empty a penitentiary.
Where the court or judge has reason to believe that a writ, order or record is in existence, which should be before the court or officer to enable complete justice to be done, the production of such paper can be compelled and the return amended. The court or justice, upon the return coming in, may examine, under oath, the officer or other person making such return, with respect to the subject matter thereof. Rev., p. 470, § 16.
According to the practice, both in England and this country, [331]*331the return can be amended at any time before the final disposition of the cause. Hurd on Habeas Corpus 262; Matter of Hopson, 40 Barb. 40; Watson’s Case, 9 Ad. & El. 731 ; People v. Cavanagh, 2 Park. Cr. R. 658. And the return, when made, will be liberally construed. Kay v. Bethel, 5 Mod. 19; People v. Nevins, 1 Hill 154; Brenan’s Case, 10 Ad. & El. (N. S.) 492.
In the present case it is urged upon the argument here that copies of the indictments should have been returned. For what purpose it is difficult to imagine. Not for the purpose of passing upon their sufficiency, for the court or justice upon habeas corpus does not sit to review errors. Cooley Const. Lim., p. 347. For the purpose of raising the question of the constitution of the Court of Oyer and Terminer, and of the grand jury which found them, their return in full was unnecessary, and this was the only question raised, by the petition or upon the hearing before the justice, so far as appears by the record. The same remark may be made in regard to the objection that there was no sufficient return of the surrender of the defendant by his surety. The fact of a surrender was not, so far as appears, controverted at any stage of the proceeding. Had it been controverted, and then had it been thought material by the justice to inquire if a rule was entered upon the surrender, and, if so, that a copy of the rule should be produced, then the alleged defect would have been proved to exist in fact, or else the return could have been perfected. The prisoner not having controverted the return as made, it must be presumed that the fact as stated by the sheriff is true.
In the case of People, ex rel. Trainer, v. Baker, 89 N. Y. 460, it was held that although a statute requires that after a criminal has been sentenced, a warrant of commitment shall be signed by the judge, yet if the petition for the writ contains no allegation that the defendant was detained without a warrant, and there is no order in the writ to send up the warrant, but only the cause of the imprisonment, a certified copy of the minutes of the court, showing the sentence imposed, will sufficiently show the cause of imprisonment.
[332]*332But the statement of the existence of the indictments, and of the surrender, are only steps in a proceeding or series of proceedings of which the subsequent orders in the Court of Quarter Sessions, remanding the defendant into custody, are a part. These orders are set out in full in the record attached to the return as a part thereof. This is sufficient, at least until some intermediate step is attacked. Church on Habeas Corpus, § 190; Watson’s Case, 9 Ad. & El. 731.
My conclusion is that the attack upon the form of the return now made cannot be recognized.
It is next insisted that the indictments against the petitioner were not found by a legally organized grand-jury.
The line of argument by which this point is supported is the following: By a special act applying to Monmouth county the Court of Common Pleas was constituted, to consist of four judges; that there were only three appointed judges of the Court of Common Pleas, and therefore there was no such court; that therefore, in the language of the brief of the counsel for petitioner, the Court of Common Pleas cannot be a factor in the making up of the Court of Oyer and Terminer.
Upon the point that the Court of Common Pleas must consist of four judges we are referred to the case of State v. Patterson, decided in this court at June Term last. But a glance at the opinion in that case is only necessary to enable us to perceive that the court only decided that by the act of 1879 (Pamph. L., p. 428) it required three judges to hold a session of such court. The defect in the proceeding reviewed in that case arose from the fact that in the face of this statute only two of the judges sat at the drawing of the jury. It was admitted that three judges could hold the court. The contention, then, that there was no legal Court of Common Pleas in existence falls to the ground. The notion that a failure to appoint a fourth judge destroys the legal constitution of the court for the transaction of business is entirely fallacious. In view of such a theory a vacancy in one of the positions filled by a justice of the Supreme Court would destroy the power of the court to conduct the legal business of the state.
[333]*333If there was but a single judge of the Court of Common Pleas appointed, although he alone could not hold a session of the court, yet he, with a justice of the Supreme Court, could hold the Court of Oyer and Terminer. Rev., p. 271, § 26.
Free access — add to your briefcase to read the full text and ask questions with AI
The opinion of the court was delivered by
Reed, J.
The first five reasons assigned for the reversal of the order below, remanding the prosecutor, are directed against the sufficiency of the return made by the sheriff in matter of form. I say in matter of form, because it cannot be insisted with any degree of plausibility, that if the facts set [330]*330out in the sheriff’s return be true, the prosecutor was not properly in custody. The fact that he had been indicted, discharged on bail, surrendered by his surety, brought into court repeatedly for trial, and remanded to custody, all appear upon the face of the return, which includes the record of the proceedings of the Court of Oyer and Terminer and Quarter Sessions. The point of the objections is that these facts should appear more certainly, and in support of this view we are referred to section 15 of the Habeas Corpus act. The third subdivision requires that the person upon whom the writ of habeas corpus shall be served shall, in his return, if defendant be detained by any writ, warrant or other written authority, annex a copy thereof to said return, and the original shall be produced and exhibited on the return to the court or justice before whom the same is returned. This provision in another form is designed to secure the right of the defendant, first guaranteed by the fifth section of the Habeas Corpus act (31 Car. II.), to a copy of the warrant, commitment or detainer under which he is imprisoned. If the custodian neglects to return such warrant he can be ordered to do so by the judicial officer who issues the writ, and this order can be enforced by attachment. Rev., p. 470, § 18 ; Church on Habeas Corpus, § 124; State v. Raborg, 2 South. 545.
But the mere failure of such custodian to return a warrant, or the fact that his return is imperfect, does not operate to discharge the prisoner. The recognition of such a rule would place in the hands of negligent or corrupt jailers the power to empty a penitentiary.
Where the court or judge has reason to believe that a writ, order or record is in existence, which should be before the court or officer to enable complete justice to be done, the production of such paper can be compelled and the return amended. The court or justice, upon the return coming in, may examine, under oath, the officer or other person making such return, with respect to the subject matter thereof. Rev., p. 470, § 16.
According to the practice, both in England and this country, [331]*331the return can be amended at any time before the final disposition of the cause. Hurd on Habeas Corpus 262; Matter of Hopson, 40 Barb. 40; Watson’s Case, 9 Ad. & El. 731 ; People v. Cavanagh, 2 Park. Cr. R. 658. And the return, when made, will be liberally construed. Kay v. Bethel, 5 Mod. 19; People v. Nevins, 1 Hill 154; Brenan’s Case, 10 Ad. & El. (N. S.) 492.
In the present case it is urged upon the argument here that copies of the indictments should have been returned. For what purpose it is difficult to imagine. Not for the purpose of passing upon their sufficiency, for the court or justice upon habeas corpus does not sit to review errors. Cooley Const. Lim., p. 347. For the purpose of raising the question of the constitution of the Court of Oyer and Terminer, and of the grand jury which found them, their return in full was unnecessary, and this was the only question raised, by the petition or upon the hearing before the justice, so far as appears by the record. The same remark may be made in regard to the objection that there was no sufficient return of the surrender of the defendant by his surety. The fact of a surrender was not, so far as appears, controverted at any stage of the proceeding. Had it been controverted, and then had it been thought material by the justice to inquire if a rule was entered upon the surrender, and, if so, that a copy of the rule should be produced, then the alleged defect would have been proved to exist in fact, or else the return could have been perfected. The prisoner not having controverted the return as made, it must be presumed that the fact as stated by the sheriff is true.
In the case of People, ex rel. Trainer, v. Baker, 89 N. Y. 460, it was held that although a statute requires that after a criminal has been sentenced, a warrant of commitment shall be signed by the judge, yet if the petition for the writ contains no allegation that the defendant was detained without a warrant, and there is no order in the writ to send up the warrant, but only the cause of the imprisonment, a certified copy of the minutes of the court, showing the sentence imposed, will sufficiently show the cause of imprisonment.
[332]*332But the statement of the existence of the indictments, and of the surrender, are only steps in a proceeding or series of proceedings of which the subsequent orders in the Court of Quarter Sessions, remanding the defendant into custody, are a part. These orders are set out in full in the record attached to the return as a part thereof. This is sufficient, at least until some intermediate step is attacked. Church on Habeas Corpus, § 190; Watson’s Case, 9 Ad. & El. 731.
My conclusion is that the attack upon the form of the return now made cannot be recognized.
It is next insisted that the indictments against the petitioner were not found by a legally organized grand-jury.
The line of argument by which this point is supported is the following: By a special act applying to Monmouth county the Court of Common Pleas was constituted, to consist of four judges; that there were only three appointed judges of the Court of Common Pleas, and therefore there was no such court; that therefore, in the language of the brief of the counsel for petitioner, the Court of Common Pleas cannot be a factor in the making up of the Court of Oyer and Terminer.
Upon the point that the Court of Common Pleas must consist of four judges we are referred to the case of State v. Patterson, decided in this court at June Term last. But a glance at the opinion in that case is only necessary to enable us to perceive that the court only decided that by the act of 1879 (Pamph. L., p. 428) it required three judges to hold a session of such court. The defect in the proceeding reviewed in that case arose from the fact that in the face of this statute only two of the judges sat at the drawing of the jury. It was admitted that three judges could hold the court. The contention, then, that there was no legal Court of Common Pleas in existence falls to the ground. The notion that a failure to appoint a fourth judge destroys the legal constitution of the court for the transaction of business is entirely fallacious. In view of such a theory a vacancy in one of the positions filled by a justice of the Supreme Court would destroy the power of the court to conduct the legal business of the state.
[333]*333If there was but a single judge of the Court of Common Pleas appointed, although he alone could not hold a session of the court, yet he, with a justice of the Supreme Court, could hold the Court of Oyer and Terminer. Rev., p. 271, § 26. So the existence of a legally constituted Court of Common Pleas is not now involved, but only the question whether there was a judge of the Court of Common Pleas with the justice of the Supreme Court in the Court of Oyer and Terminer. The answer to the objection upon this ground is so obvious, upon the merits, that it is unnecessary to examine how far an objection to the qualification of a judge to hold a court can be considered upon habeas corpus. The rule seems to be that the character of a de facto officer, so long as the court has jurisdiction over the person and subject matter of the adjudication, cannot be questioned upon this proceeding. Church on Habeas Corpus, §§ 356, 357, 369.
It is next insisted that the petitioner was entitled to his discharge because his trials were unreasonably delayed. The counsel for the petitioner places himself upon the provision of our state constitution, that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury; and also upon the sixty-fifth section of the act concerning criminal proceedings. This section provides that every indictment shall be tried the term or session in which issue is joined, or the term after, unless the court, for just cause, shall allow further time for the trial thereof, and if such indictment be not so tried as aforesaid, the defendant shall be discharged.
This clause, first enacted in 1799, seems to have superseded the provisions of the seventh section of the Habeas Corpus act of Charles II., first enacted in this state in 1795, and still in our Habeas Corpus act. Rev., p. 475, § 52; State v. Garthwaite, 3 Zab. 143.
The counsel for the petitioner properly presented the constitutional and statutory provisions together, for it cannot be doubted that the statute was drafted to effectuate the purpose which the constitutional clause was designed to secure. And [334]*334it seems evident, in the light of this legislation, that the remedy of a defendant for an alleged violation of his constitutional right lies, in the first instance, in the trial court. Indeed; the existence of facts which will afford a just cause for the allowance of further time is so peculiarly within the knowledge of the trial court, that nowhere else can the exercise of the discretion be so intelligently discharged.
The injunction, of the constitution, like every other right, can only become efficient through the intervention of some court, and the matter of speed rests so much upon the facility or embarrassments which attend each prosecution, that aside from the words of the statute, discretion in that court is absolutely essential. Again, says Judge Cooley, it is required that the trial shall be speedy; and here also the injunction is addressed to the sense of justice and sound judgment of the court. Cooley Const. Lim., p. 311.
It is, I imagine, because of the discretionary and consequently unreviewable character of the orders of the courts in granting or refusing discharges, applied for on the ground of delay in prosecution, that there is so little judicial sentiment expressed upon this constitutional guarantee. Those writers upon criminal and constitutional law, who would be expected to treat of the extent of the prisoner’s right and the method of securing it, have little to say upon the subject. Nor do the writers upon the use of the writ of habeas corpus indicate any opinion as to the propriety of its use to secure a discharge solely upon the ground of a refusal of a trial court to discharge because of a delay in prosecuting an indictment.
Its use seems to have been recognized in Glover’s Case, 109 Mass. 340, where nothing was said on this head and the prisoner was remanded. On the other hand, where the statute provided for an entire discharge from liability to answer again, and not merely a discharge from imprisonment, it was held that the court, on habeas corpus, would not review the action of the trial court in refusing a discharge. Ex parte McGehan, 22 Ohio St. 442. The Colorado Supreme Court, in In re Gurney, recently decided to discharge because the statute which [335]*335gave the right to a trial within a specified time was a part of the Habeas Corpus act.
While I am not prepared to say that no discharge would be ordered upon habeas corpus, on the ground that a trial court abused its discretion in refusing to discharge, yet I am clear that it must appear, first, that application was made to the trial court for a discharge upon this ground, and second, that there was an arbitrary and causeless refusal to do so, before a discharge would be ordered by the judicial officer hearing the matter upon return to the writ.
The trial court is controlled in its judicial action in this respect by the constitutional' injunction, and will be presumed to have had in view the rights of the prisoner under it. It will be presumed that the court exercised the discretion in a proper judicial spirit, and that sufficient reasons were before the court to justify the delay. And even when all the facts which were before the trial court are reproduced before the judicial officer, it is not the province of the latter to review the exercise of discretion, but to ascertain if there was any ground upon which the trial court could have exercised a discretion at all as it did.
In the present case it does appear that an application was made to the Court of Quarter Sessions for a discharge, at May Term, 1885. It appears that the postponements were ordered for good cause. Nothing appears to show that there may not have been good cause. This, without further observation, would be an answer to the claim of the petitioner. But under the circumstances as they appear upon the record, it seems to me that the proceedings were reasonably expeditious, and the trial court, in refusing a discharge, was right.
The order of the justice remanding the prisoner is affirmed.