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Entered as secona-ciasa matter Au
29th, 1923, at the postoffice at
Tokptpa, Alaska, under the Act oi
Mapch 3, W9*
i'akptnay Alaska.4 November'2b, Pi'll
DECISION t* HJl'IXiE CLEGG
IN THE JOE OATES CASE
(Continued from Page 3.)
It is conceded by both parties to
hisj proceeding that the justice court
ha<\ jurisdiction of the person of the
defendant and of the offense of as
sault on the inception . of the trial
and that the commitment itself is
regular, except, tha.it purports to
authorize imprisonment for nonpay
ment of costs, and th*- effect of such
a provision in the commitment is
ma^Je a subject of controversy.
The ,-main contention of the peti
tioner, however, is that the trial pro
ceedings were vitiated, and rendered
void. in selecting the jury, and that,
therefore, all subsequent proceedings
were and are void and compel the
petitioner’s discharge from custody.
The Government’s attorneys- con
tend that this court cannot now ex
tend its inquiry beyond be judgment
of conviction and issuance* of commit
ment. and that the jurisd.etion of the
triql court being conceded ,in the
above particulars, any irregularity in
dra(wing the jury is a mere error not
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WIRE
RoMrt H. Romig
AGENT
Anchorage, Alaska
j revicwable by this writ and that th<
I Court now must deny the writ and re
j maad the prisoner,
j Nothin gis better settled jn the law
! relative to the jurisdiction of a jus
| tice court than the principle that *
justice court is the creature of the
statute creating it. and that no in
tendments or presumptions 'Will he in
dulged in favor of ;ts jurisdiction, and
that its jurisdiction and authority
continues only so long as it conlnes
| the exercise of its powers within the
| limits conferred -by law. In Alaska
i the court of a commissioner and ex,
; offiffifficffiio justice of the peace is an
j inferior court,
j 2 C. «F. 99, 167.
| Hackleman vs. Geise et al.
j l Alaska 568, 570.
Mitehel vs. Galen et al.
! t Alaska, 339.
Sylvester’s Adru’r, vs.
i Willson’s Adm’rs, 2 Alaska, 325.
j 332, 333, 336.
United States vs. Bozaraviteh et al .
| 4 Alaska 37, 39.
Schofield vs. Powell, 3'Alaska, 373.
I 375; 376.
1
The main authority cited by the
United States Attorney is Riddle vs
Dyche. 262 U, S. 353.
In that case defendant was eonviet:
i ed in a court of general and compe
tent jurisdiction namely, the “Federal
I District Court for the Northerp Dis
trict of Alabama,” upon a felony
j charge, the record of which court re
i cited that “a jury of good and lawful
men” was empaneled. After sentence
, defendant moved to amend the record
i to show that only .eleven men sat in
the cas eas jurors. The motion was
denied, the court stationg that the
record was as it should be.
Later mandamus proceedings were
instituted in the Supreme Court of
the United States and- denied, and
thereafter a writ of error was taken
to the Circuit Court of Appeals for
the Fifth circuit, where the judgment
of conviction was affirmed. The point
as to insufficient number of jurors
was not considered by the latter
court, as no exceptions thereto were
taken on the trial.
j Thereafter Riddle applied,to / the
District Court for the Northern Dis
► V* iv-v vi vjcui^ia lu l win, ob iiaucm
corpus and1, that court denied tht
same, deciding’ it was without author
j ity to review the action of the triial
i court, which could not be impeached
I collaterally, being a district tribunal
of general jurisdiction and not acting
in the exercise of appellate power.
Riddle then took appeal to the Su
! preme Court of the United States
! from the orde denying the writ, which
! order was affirmed. The Supreme
I Court says
j “That the trial court had jurisdic
| tion to try and punish the appellant
for the offense with which he is
charged is not disputed. The attempt
I is collaterally to impeach to impeach
; the record, showing upon the face
, that a lawful jury was duly impan
| eled, sworn and charged. Appellant’s
1 remedy, as suggested in the man?
damus proceeding, was- by writ of
error. He did not avail himself of. itj
and whatever may have been..the
cause or excuse for sot doipg^-ao,
habeas corpus cannot be use^, gp1 a
substitute.” Riddle, vs. Dycne,"^i>pra.
The doctrine announced, in the,JRid
dle case affords no basis of-Authority
in support of the Government’s con
tention because the Supreme Court
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■ was speaking with reference to the
record of a court of pen oral and com
petent jurisdiction and not in regard
to th erecord of a court of inferior
and limited jurisdiction such as the
trial court here, the justice .court of
Alaska. The record of the latter
court is always open to attack in a
habeas corpus oroceedipg and*:, when
•#ius challenged, such court must jus
tify its official acts at any and every
stage of the proceedings, by .showing
that it acted within,.its jurisdiction.,
, Relying apparently and solely upon
the Riddle case above mentioned,. the
Qovernment has produced no evi
dence, record evidence or any other,
to sustain the validity of the jury,
drawing and empaneling in the trial ,
court. Neither the Commissioner nor
1 the Deputy United states , Marshal
who summoned the jury-was before
this court on the hearing. They were
both material witnesses ? must pre
l sume failure to call either-or both of
..these-sworn officers of the law to be
' in .favor of the claims of, the peti
tioner. and a vi’.'Uial admission by.
the Governmen’ of t.he^truth of the
testimony received ip f.awr of'the pe
titioner as to the maner in which the
jury was drawn and-impaneled. |
Reception hv the Court of the testi
mony of the petitioner in his own be
half on thift point was objected to by
• the Government add .by. the Court
overruled. The argument is made
that his testimony- is unreliable, and, *
being .the only testimony in the case,,
should be disregarded. If it was
false testimony, the Government had
full opportunity to expose that fact
by the circumstances above adverted
to, but failed to avail itself of such,
| opportunity. Why would the peti
tioner, by giving false testimony on.
this hearing to relieve himself from
punishment on a misdemeanor charge,
subject himself to a greater penalty
on a felony charge, the charge of
perjury?
The further objection was made
that such evidence was at best sec
ondary and that the record was the
best evidence. This was also over
ruled op the ground that it was not ?
secondary, hut original evidence by I
one participating in the tnal as a de
fendant, .and as being the positive
testhnopy, of an eye-witness. The
Court inquired if the record of the.
: justice ;&»urt was in the possession of
the parlies and was answered in the
negative.. By a postponement of the
hearing- for six days, the Court of its
own volition and motion endeavored
to secure said record but failed. Oh
the sixth daw the hearing was re
sumed ,in the absence of such record,
j The .law requires an immediate
j hearigg,; in a habeas, corpus proceed- ■
j ing (Section 1410, Compiled Laws of
Alaska*. 1913), and the Court will not a
acquiesce in further postponement in
(Continued on Page 3.) j
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