The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1908-02-05
HAbEAS CORPUS
IS APPEALAbLE
Supreme Court Holds 1t Is a
Civil and Not Criminal
Proceeding.
DECISION is IMPORTANT
TEST MADE IN CASE OF AUSTRi-
AN CHARGED WITH MURDER.

In decision handed down yesterday
the supreme court holds that pro-
ceeding in habeas corpus is civil,
and not criminal, proceeding, and
that a Judgment entered in such an
action by a lower court is final and
therefore appealable.
AS the proceedings are of a civil ma
ture the right to appeal cannot be de-
MED the sheriff against whom the writ
is directed if the lower court dis
charges the petitioner from CUSTODY,
even though such an appeal is in eff
feet an appeal by the state.
1t is also decided that district
Judge in habeas corpus proceedings has
not the right to determine, from the
evidence at the preliminary hearing,
whether there was a probable cause or
not for the binding over of the petit
toner for trial, but must confines ms
inquiry TO questions of jurisdiction,
and if it is found that the magistrate
had Jurisdiction of the subject matter
and the person of the defendant, that
the complaint stated an offense, that
the magistrate acted within his juris-
diction and that all the proceedings
had were regular. then the court may
not discharge the prisoner.
OF Great Importance.
The decision is considered one - of
great importance in that it lays down
a new rule of procedure i'm such cases
in Utah and reverses the territorial
supreme court which held, in Mead VS..
Metcalf Z Utah 103 and in re CLASSIFY,
Utah, 1873, that an order or judgment
discharging a prisoner upon hdbeas
corpus is not a final judgment from
which an appeal will lie and that no
appeal is permissible i'm any event in
habeas corpus proceedings.
The decision was handed down in the
case of Emil Winnowich. respondent,
VS.. C. Frank Emery. sheriff of Salt
Lake county, appellant, and the result
will probably be that four Austrians
will have sto stand trial for murder,
provided they can be located.
On June Is. 1907. a complaint was
filed with Justice Williams at Bingham
charging Winnovich, Matt Ribich,
Mike Urrattan. Mick Rakativich and
Mike Trevich with murder in the first
degree. The crime was the killing of
Anastasious Kovalles during a saloon
brawl at Bingham Junction May 20,
1907. On June IS Justice Williams
bound the five defendants over to the
district court to stand trial, and they
we're lodged in the county jail. Win
nOViCh against whom the only evil
dence was that of an accomplice, petit
toned for a writ of habeas corpus on
June &c. and after an examination of
the records of the preliminary hearing
Judge Armstrong ordered the defend
ant discharged from custody because
there did not appear to be sufficient
evidence adduced at the hearing to
warrant holding him for trial,
Emery Tests Ruling.
Sheriff Emery was then compelled to
allow the other defendants to go on
small bail. but thought he would test
the Armstrong ruling, so he appealed
to the supreme court, The attorney for
Winnovich moved the court TO dismiss
the appeal on the ground that it was
in effect an appeal by the state, and
that the state had not the right to ap-
peal in such proceedings, and further
more that i'm any event no appeal lies
from habeas corpus proceedings in this
state, because the order of judgment or
discharge is not a final judgment.
AS the court holds that habeas cor
pus is a civil and not criminal pro-
ceedings, the first ground for dismissal
is disposed of In the case at hand
Sheriff Emery is the appellant in fact,
and not the state. The plaintiff is
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 lower court orders
a prisoner discharged that he can be
restrained of his liberty until the su-
preme court passes on the matter.
Does Not Suspend Judgment.
AS to the argument that the policy of
the law in regard to appeals in habeas
corpus proceedings is opposed to the
exercise of the right, and that there
fore appeals in such cases should not
be permitted, the court says:
This argument is based upon the
theory that TO permit appeals i'm ha-
beas corpus proceedings destroys the
effectiveness of the remedy: that it
may delay the party i'm obtaining his
liberty, the very thing that by habeas
corpus was intended TO be speedily re-
stored to him. 1t is urged that if ap-
peals are permitted then the tudg-
ment of the court discharging the pris-
oner must be suspended and the very
purpose of the writ is defeated. With
out an express statutory provision to
that effect an appeal does not, of its
own force SrISneDd tha ind srneut i'm n