
    ARESON v. PINCOCK, Sheriff.
    No. 4082.
    Decided December 1, 1923.
    (220 Pac. 503.)
    1. Breach op the Peace — Element op Pear not Required by Statute to be Stated in Complaint. Under Comp. Laws 1917, §§ 8507-8570, 8575, providing for arrest and placing under security to keep tbe peace, the element of fear that threats will be carried out is not required to be specifically stated in the complaint, but is to be concluded from facts laid before the magistrate as a prerequisite to issuance of the warrant.
    2. Breach op the Peace — Proof op Threatened Offense and Belief op Complainant not as Matter op Law Insufficient to Authorize Warrant. It cannot be said as a matter of law that sworn proof of a threatened offense and the belief of complainant that it will be carried into execution is insufficient to authorize a magistrate to conclude that there is just reason to fear the commission of the offense for the purpose of issuing a warrant to require security to keep the peace.
    3. Habeas Corpus — Defects op Jurisdictional Character Taken Cognizance op by Habeas Corpus. Habeas corpus takes cognizance only of jurisdictional defects which render a proceeding not merely voidable, but absolutely void.
    4. Habeas Corpus — Question op Sufficiency op Complaint in Proceeding for Security to Keep Peace not One op Jurisdiction. The question whether the complaint in a proceeding to require security to keep the peace was sufficient to state a cause of action where it omitted to state that there was reason to fear the commission of the offense threatened was not one of jurisdiction, and cannot be inquired into in habeas corpus proceedings.
    5. Breach op the Peace — Judgment in Present Tense Instead op as to Time Complaint Piled Held Sufiicient. In proceeding to require security to keep the peace, a judgment finding that there is just reason to fear that defendant will carry into execution the threat made is not fatally defective because in the present tense instead of as of the time when complaint was filed.
    Original application by Neis Areson for writ of babeas corpus against R. D. Pincoct, as sheriff of Weber County.
    
      WRIT DENIED.
    
      John G. Willis, of Ogden, for plaintiff.
    
      D. J. Wilson,. Co. Atty., of Ogden, for defendant.
   CHERRY, J.

Upon tbe petition of Neis Areson, alleging tbat be was illegally restrained of bis liberty by tbe sheriff of Weber county, a writ of habeas corpus was issued, to which tbe sheriff made his return according to law.

The facts necessary to be considered are alleged in the petition, and are not disputed. On June 18, 1923, Geo. F. Fullmer filed a complaint before Hon. George S. Barker, judge of the Second judicial district court, sitting as a magistrate, charging Neis Areson, defendant (the petitioner herein), with having made a series of specific threats of personal violence against him, on divers dates on and between January 21, 1922, and June 6, 1923, and “that complainant verily believes that unless said defendant is arrested and placed under security to keep the peace that he will carry out his threats against this complainant and others, for said defendant is prepared to execute his threats unless restrained. ’ ’

A hearing was had before the magistrate on November 14, 1923, at the conclusion of which he found that “the defendant has frequently threatened to inflict great bodily harm upon the "complainant, even to kill the complainant, and it further appearing that there is just reason to fear that said defendant will carry into execution the threats so made,” and ordered the defendant to enter into an undertaking in the sum of $2,000 to keep the peace, etc., or in default thereof to be committed to the custody of the sheriff to be by him imprisoned in the county jail until he give such undertaking or is legally discharged.

The defendant failed to give the undertaking, whereupon a commitment was issued pursuant to the order, and he was imprisoned in the county jail of Weber county.

Tbe particular respects wberem it is claimed tbe restraint is illegal are: (1) Tbat tbe complaint is insufficient to state a cause of action or to confer jurisdiction upon tbe court, because it omits to state “tbat there is just reason to fear the commission of tbe offense threatened”; tbat tbe statement in tbe complaint “tbat tbe complainant verily believes that unless said defendant is arrested and placed under security to keep tbe peace be will carry out his threats,” etc., is insufficient; and (2) tbat tbe finding of tbe magistrate “that there is just reason to fear tbat defendant will carry into execution tbe threats so made” is fatally defective because it is in tbe present tense, and relates to tbe time of bearing, and fails to find tbat such fear existed at tbe time complaint was made.

Tbe proceedings bad before tbe magistrate are authorized by Comp. Laws Utah 1917, §§ 8567-8583, and tbe particular matters, here involved are governed by- tbe following provisions :

Section 8567. "A complaint may be made before any magistrate that a person has threatened to commit an offense against the person or property of another.”
Section 8568. “The magistrate must examine on oath the complainant and any witnesses he may produce, and may take their depositions in writing.”
Section 8569. “A complaint within the meaning of this chapter is a statement in writing of the jurisdictional facts, clearly specifying the threatened offense, and subscribed and sworn to by the complainant.”
Section 8570. “If it appears that there is just reason to fear the commission of the offense threatened, the magistrate may issue a warrant directed generally to any peace officer, reciting the substance of the complaint and commanding the officer forthwith to arrest the person complained of and bring him before such magistrate, or, in case of his absence or inability to act, before, the nearest and most accessible magistrate of the county.”
Section 8575. “If, however, there is just reason to fear the commission of the offense, the person complained of may be required to enter into an undertaking in such sum, not exceeding $3,000, as the magistrate may direct, with one or more sufficient sureties, to keep the peace toward the people of this state, and particularly toward the complainant. * * *”

It is thus seen that the element of fear is not required by the statute to be specifically stated in the complaint, but is to be concluded by the magistrate from the facts laid before him, as a prerequisite to the issuance of the warrant. The whole matter is reduced to the question of whether the showing made to the magistrate was sufficient to authorize him to conclude that there was just reason to fear the commission of the threatened offense.

We are not prepared to say as a matter of law that sworn proof of a threatened offense, and the belief of complainant that it will be carried into execution, is insufficient to authorize a magistrate to conclude that there is just reason to fear the commission of the offense threatened for the purpose of issuing- a warrant of arrest.

But the question is not one of jurisdiction, and may not be inquired into in habeas corpus proceedings. It cannot be denied that the court had jurisdiction generally to try the issues and make the order complained of. Habeas corpus takes cognizance only of defects of a jurisdictional character, which render the proceedings not merely voidable, but absolutely void. Bruce v. East, 43 Utah, 327, 134 Pac. 1175. The rule is well settled and is supported by many cases. See annotation to Ex parte Robinson, L. R. A. 1918B, 1148. The following excerpt from the annotation above referred to indicates the extent to which the rule is applied:

“It has been said that, if from the accusation the court can deduce that the prosecutor intended to charge an act which is a crime, habeas corpus will not lie, however defectively the act is described; also that if the indictment or information purports or attempts to state an offense, and the court has jurisdiction to pass upon the sufficiency of those statements, the defendants after conviction will not be released on habeas corpus; and that, ‘if a criminal charge Is colorable, or “sufficient to set the judicial mind in motion” or to call upon it to act, or makes some approach towards charging a criminal offense, or intimates the facts necessary to constitute the offense and a purpose to declare thereon, or tends to show a criminal offense, no matter how informal or defective, or has a legal tendency to prove each requirement of the statute, it will shield the proceedings from collateral attack. In a word, no errors or irregularities not going to the question of jurisdiction are reviewable on habeas corpus.’ The rule has been laid down in several cases involving the sufficiency of complaints to charge misdemeanors, although probably the doctrine was not intended to be limited to this class of cases, that after trial and conviction for an alleged misdemeanor a prisoner will not be liberated on a writ of habeas corpus because of the insufficiency of the complaint, if, by any possible construction of the language employed therein, an offense against the law is thereby even defectively stated.”

In re Gregory, 219 U. S. 210, 31 Sup. Ct. 143, 55 L. Ed. 184, Mr. Justice Hughes, speaking for tbe court, in a case where colorable questions were presented by the information and evidence, stated the rule as follows:

“A habeas corpus proceeding cannot be made to perform the function of a writ of error and we are not concerned with the question whether the information was sufficient or whether the acts set forth in the agreed statement constituted a crime, that is to say, whether the court properly applied the law, if it be found that the court had jurisdiction to try the issues and to render the judgment.”

The petitioner’s objection to the complaint considered as the basis of mere error is most hypercritical, and it is so unrelated to the subject of jurisdiction that it cannot be considered at all in a habeas corpus case.

The second objection to the proceedings is even less meritorious. Counsel for petitioner has cited eases to the effect that it is not a defense, or a ground for imposing costs upon the complaining witness, to show that, notwithstanding there were just grounds for fearing a breach of the peace when the complaint was filed, the grounds for such fear did not exist at the time of trial. State v. Sayer, 35 Ind. 379; State v. Steward, 48 Ind. 146; Stone v. State, 97 Ind. 345. No such questions arose in the proceedings now under consideration, nor is it seen how these proceedings give any support to the proposition that a judgment is void because it is expressed in the present tense, instead of as of the time when the complaint was filed. The objection is groundless, and not worthy of further comment.

The petition is denied, and the prisoner remanded to the custody of the sheriff.

WEBER, C. J., and GIDEON, THURMAN, and FRICK, JJ., concur.  