Cowell v. Patterson

1. Habeas Corpus: waiver. The waiver of pveUmiiiavy examination before the committing magistrate will not deprive the defendant of the right, in a habeas corpus proceeding, to introduce testimony for the purpose of showing- he is not detained upon sufficient evidence to sustain the charge. 2. -: warrant. The warrant of commitment, issuing to the sheriff of the county in which the examination is held, will authorize his detention and custody by the sheriff of the next most convenient county having a jail.

Appeal from J. N. Weaver, Judge, at Chambers. The plaintiff applied for and obtained a writ of habeas corpus. The defendant is deputy sheriff of Kossuth county, and as such he has the custody of the petitioner, who is confined in jail in that county. The petitioner had been brought before one Davey, a justice of the peace in Estherville township, Emmet county, for a preliminary examination upon an information charging him with the crime of assault with intent to kill. He was held to answer, and his bail fixed at two thousand dollars. In default of bail the justice issued a mittimus to the sheriff of Emmet county directing him to detain the prisoner in the jail of Emmet county or that of the next most convenient county, until he should be legally discharged. The petition states that the restraint is illegal in that— First, the warrant of commitment runs only to the sheriff of Emmet county, and does not authorize the defendant, James Patterson, deputy sheriff of Kossuth county, to hold the petitioner; second, the bail is exorbitant; third, there is no evidence justifying the holding of the petitioner to answer. The petition was granted, and a writ of habeas corpiis was issued, and served upon the defendant, who produced the petitioner, as therein directed, and for answer set out the writ of commitment issued to the sheriff of Emmet county. There was attached to the answer, but not referred to therein, what purported to be a copy of the entry of the justice of the peace in his docket in the case of the State of Iowa v. G. G. Cowell, being the case in which the warrant’ of commitment was issued, which entry showed that the petitioner waived an examination. The petitioner moved to strike out the copy of the justice’s entry because it is not referred to in the answer, and is immaterial. The court overruled the motion, and the petitioner excepted. The petitioner then filed a reply, stating that there was not sufficient evidence in existence to justify holding him to answer; that the assault was committed in self-defense, and that the bail fixed is exorbitant. To the reply the defendant demurred, upon the 'ground — First, that it appears by the issues herein, and the proceedings in the cause, that the petitioner waived an examination before the committing magistrate, and that the question of the sufficiency of the evidence cannot, therefore, be raised; second, that the question of self-defense cannot be raised in a reply. The demurrer was sustained, and the petitioner excepted. Thereupon the case came on for hearing, and the petitioner offered several witnesses, and asked to have their testimony taken, for the purpose of showing — First, that the testimony does not warrant the holding of the petitioner, under the writ of habeas corpus, to answer the charge made; second, that the assault was in self-defense, and that he used only so much force as was necessary; third, that the bail fixed is exorbitant. ■ The court refused to hear the witnesses, to which action the petitioner excepted. The court then proceeded to determine the ease upon the pleadings and exhibits, and held that the petitioner was not improperly restrained, and that the bail fixed is reasonable, and rendered judgment accordingly. The petitioner appeals.