In re Lewis

Mr. Justice Holloway:

I dissent. The judgment entered against this petitioner in the district court is void and the commitment under which the warden assumes to imprison him is a nullity.

This court has no original jurisdiction in criminal cases, and I challenge its authority to issue a commitment under which the sheriff of Yellowstone county can hold this petitioner in confinement until such time as a judgment may be rendered and entered against him in the district court. At least until that judgment is rendered — whether it be done within one month or six months — this petitioner will be deprived of his liberty without due process of law, the constitutional guaranty notwithstanding.

The decision of the majority converts the writ of habeas corpus into a writ of review, and the cause is treated and disposed of as though the case of the State v. Lewis was before this court on appeal. In this state the writ of habeas corpus is the writ as it was known to the law at the time our Constitution was adopted in 1889, and in an application of the character of the one now before us the inquiry upon the return is limited to a determination of the question: Is the imprisonment or restraint legal? (Sec. 9642, Rev. Codes.) Sections 9643 and 9650, Revised Codes, specify particularly when the applicant may be remanded to custody, but the circumstances of the present case do not approach the conditions enumerated therein.

*544That this applicant is illegally imprisoned cannot be gainsaid, and section 9658, Revised Codes, provides that under such circumstances he must be discharged. It may be that the law ought to he different, hut until changed hy the proper lawmaking body, this court ought to carry into effect the plain provisions of the Codes, whatever the results may be.