State v. Gordon

Smith, C. J.,

delivered the opinion of the court.

OH MOTION TO DISMISS.

This is an appeal by the state from a judgment in a habeas corpus proceeding, admitting appellee to bail; he being in custody under an indictment charging him with murder. The sheriff, in whose custody appellee was, joined in the appeal.

Appellee has filed a motion requesting that this appeal be dismissed on the ground that such an appeal will not lie on the part of either of the appellants. The contention of counsel for appellee is that this is a criminal and not a civil case, and that it does not come within any of the provisions of section 40 of the Code of 1906, under which section alone the state may appeal in criminal cases. In this counsel are in error. A proceeding to enforce the right of personal liberty by means of a writ of habeas corpus is civil and not criminal. In the language of the supreme court of the United States in Ex parte Tom Tong, 108 U. S. 556, 2 Sup. Ct. 871, 27 L. Ed. 826: “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. ’ ’ See 21 Cyc. 282; 15 A. & E. Enc. Law (2d Ed.) 157; Cross v. Burke, 146 U. S. 82, 13 Sup. Ct. 22, 36 L. Ed. 896; Kurtz v. Moffitt, 156 U. S. 487, 6 Sup. Ct. 148, 29 L. Ed. 458; State v. Huegin, 110 Wis. 189, 85 N. W. 1046, 62 L. R. A. 700; In re Jewett, 69 Kan. 830, 77 Pac. 567; State v. Superior Court, 32 Wash. 143, 72 Pac. 1040.

The state, though not formally designated as such, is always a real party to the record in habeas corpus proceedings, where the petitioner is being held to await trial for an alleged violation of the criminal law, and is therefore' entitled to an appeal from a judgment adverse to its interest, under section 36 of the Code of 1906, which provides that “any party aggrieved by the judgment, on the trial of a habeas corpus, shall have an appeal to the supreme court.” Our attention has been called to the cases of State v. Shrader, 72 Miss. 541, 18 So. 454, and State v. Key, 93 Miss. 115, 46 So. 75, wherein it was held that no appeal on the part of the state will lie from the judgment of a circuit judge allowing bail to the person held to await trial on a criminal charge. If sound in principle, as to which we express no opinion, these cases are not necessarily in conflict with the views herein expressed, for the reason that the judgments therein appealed from were not rendered in habeas corpus proceedings, but were simply orders made by the circuit judge, whether legally or not is here immaterial, relative to the custody of defendants awaiting trial in the courts over which they presided. Section 36 of the Code was therefore not involved in those cases.

Since an appeal was properly prosecuted by the state, we deem it unnecessary to determine whether or not the sheriff, in whose custody the petitioner was, is entitled to appeal.

Motion overruled.