Show I HABEAS CORPUS m 0 IS Supreme Court Holds it Is a Civil and Not Criminal Proceeding DECISION IS IMPORTANT TEST rEST MADE IN CASE OF AUSTRI AUSTRIAN AN CHARGED WITH MURDER In a decision handed down yesterday the supreme court court holds hoMs that a pro proceeding proceeding proceeding in habeas corpus Is a civil and not a criminal proceeding and that a Judgment entered in such an action by py a lower court Is final and therefore As the proceedings are of a civil na nature nat nature ture t Ie the right to appeal cannot be de denied denied denied nied the sheriff against whom the writ is directed If the lower court dis discharges discharges discharges charges the petitioner from custody even en though such an appeal is in cf ef effect feet an appeal by the state It Is 15 also decided that a district Judge judges in n habeas corpus proceedings has I not the right to determine from fr m the evidence at the preliminary hearing bearing I whether there was a probable cause or I Inot not for the binding over of oC the peti petitioner pe petitioner I for trial but must confine confiner his I Inquiry to questions que lons of Jurisdiction i and if It It Is found that hat the magistrate I had Jurisdiction of the subject matter matterand matterand i and the person of ot the defendant that the complaint stated an offense that the magistrate acted within his jurisdiction Juris jurls Jurisdiction diction and that all alt the proceedings had were vere regular then the court may i inot not discharge the prisoner Of Great Importance The decision is considered one of great importance In that it lays las down downa d wn a new rule of procedure In such cases In Utah and reverses rov the territorial supreme court which held in Mead vs Metcalf 7 i Utah and In ht Inre re Clasby 3 Utah that tha a an 1 order or Judgment discharging a prisoner upon habeas corpus Is IJ not a final judgment from which an appeal will lie He and that no appeal Is permissible in any event In habeas corpus proceedings The decision was handed down in the case of oC Emil respondent vs VB C Frank Emery sheriff of Salt Lake county count appellant and the result will probably be that four Austrians will stand trial for murder provided be located On June 15 1907 a complaint was filed with Justice Williams at Bingham am charging Matt Mike Mick and Mike with murder In the first degree The crime was the killing of during a saloon brawl at Bingham Junction May 20 1907 1307 On June 18 Justice Williams bound the five defendants over to the district court to stand trial and they were lodged In the county Jail Win against whom the only on I evi evidence evidence evidence dence was that of an accomplice accompli e peti petitioned petitioned petitioned for Cor a writ of habeas corpus on June 26 and after aCter an examination x Of f the records of the preliminary hearing h aring Judge Armstrong ordered the defend defendant defendant defendant ant discharged from custody custod because there did not pot appear to be sufficient evidence adduced at the healing to warrant holding him for trial Emery Tests Ruling Sheriff Emery Emen was then compelled to allow the other defendants to go g on small ball bail but thought he Ito would test the Armstrong ruling so he appealed to the supreme court The attorney for moved the court to dismiss tho the appeal on the ground that it was In effect an appeal by b the state and that the tho state bad had not the right to ap appeal appeal appeal peal In such proceedings and further furthermore furthermore furthermore more that In any event no appeal lies from habeas corpus proceedings In this state because the order of oC Judgment or discharge is not a final Judgment As the court holds that habeas cor corpus corpus corpus pus is a civil and not a criminal pro proceedings proceedings proceedings the first ground for Cor dismissal Is disposed of In the case ase at hand Sheriff Emery Is the appellant in fact and not the state The plaintiff Is simply seeking to vindicate a legal right and the sheriff or defendant Is opposing his claim The court while admitting that a Judgment In such an action is a final one and can be appealed from does not state that if the lover louver lover court orders a prisoner discharged that he can be restrained of his liberty lIbert until the su supreme supreme supreme preme court passes on the matter Does Not Suspend Judgment As to the argument that the policy of oC the law in regard to appeals in habeas corpus proceedings is opposed to the exercise of the right and that there ther therefore therefore fore appeals in such cases should not be permitted the th court says This argument is based upon the theory that to permit appeals in ha habeas habeas habeas beas corpus proceedings destroys the effectiveness of the remedy that It may delay the party in obtaining his liberty the very thing that by habeas corpus was intended to be speedily re restored restored restored stored to him It Is urged that If It ap appeals appeals appeals peals are permitted then the Judg Judgment judgment judgment ment of the court discharging the pris prisoner prisoner prisoner oner must be suspended and the very purpose of oC the writ is defeated With Without Without Without out an express statutory provision to that effect an an appeal does not of its own force torce suspend the Judgment in a I habeas corpus proceeding But this question que Is not Involved In this case and we therefore express no opinion upon It except to suggest that such result re does not no necessarily follow from the allowance of ot an appeal and therefore there therefore therefore fore that It is not a conclusive reason or 01 argument against the allowance of appeals In such proceedings Sound Legal Policy Polley The court says that an appeal by the state slate through the person of tho sheriff is In line with the policy polley of all aIt courts to enforce the tho laws lava la 8 against criminals and it Is 11 1 to enforce them in favor of liberty and against illegal restraint If It the thc district court C urt discharges from Crom cus cue custody custody tody a criminal It is right that the su supreme supreme supreme preme court should pass upon the thee matter If there is any doubt as to the law and thus settle the point at issue It is by a strict enforcement of all a athe the laws that liberty Is best protect protected ed says sas the opinion The opinion then goes on to show that the district f Judge has no right to togo l togo go back of oC the thA records In the case and examine the evidence introduced at the preliminary hearing and determine whether reasonable reas cause exists for binding over the th prisoner r for trial The opinion is written by b Justice Frick k and i nd concurred In by Chief Jus Justice Justice Justice tice McCarty and Justice left for his home In Ausy Aus Austria Austria tria after atter being discharged and the Judgment of ot the supreme court urt can can n only affect those defendants now In 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