¶1dissenting.
¶2I cannot agree to the conclusion reached in this case by the majority of the court, and will briefly give some of my reasons therefor, without elaboration or the citation of authorities.
¶3While I entertain no degree of disrespect for Hon. V. Bierbower, who defended petitioner upon his trial, yet I do not believe an unsworn statement, from him or any other person, in the form of a letter to the present counsel for petitioner, should have any legal weight attached to it, nor should it be considered as evidence in any form. The law provides a method of taking testimony; that method should be’ followed. I find among the files in this application a letter from Hon. William Gaslin, who was the presiding judge at the timé of the conviction of petitioner, in which he says he does not remember much about the case, and, therefore, has no recollection as to the allegations of the indictment. If letters are to be considered, I am persuaded that if that judge had consigned a person to imprisonment for life, upon an indictment alleging the offense to have been committed in a part of the state over which his court had no jurisdiction, he would have remembered it. It would take very strong, proof indeed, to convince me that he would have done so, or that Hon. C. J. Dilworth, who was at that time district attorney and present in court, prepared the indictment and conducted the prosecution, and who was shortly afterwards elected to the office of attorney general of the state, would have been a party to any such proceeding.
¶4*540It is true that affidavits are presented by which- it is sought to be established that such were the facts, but those affidavits, if competent evidence at all, were made nearly ten years after the conviction, by men of whose intelligence or probity we know nothing, and some, if not all of whom, are personally friendly to the petitioner. If the solemn adjudications of our courts can be overturned in this way, then it seems to me there is not much “ faith and credit” to be given them. Lost indictments may become common, and the courts be besieged with applications for writs of habeas corpus. Suppose the authorities of Sioux county should institute a criminal prosecution against petitioner for murder, and pending the proceeding the indictment upon which he was convicted should be found, and it should contain' the allegation that the murder was committed in Cheyenne county, with his plea of guilty therein, as shown by the records before us'; this would afford' a complete bar to any other prosecution, and he would be entitled to his immediate discharge; for, if it was so alleged and thus admittted, it would be wholly immaterial whether the crime was, in fact, committed on the north or south side of the county line.
¶5Again, the record before us shows that the defense of petitioner was conducted by Messrs. Bierbower and Heist, the latter of whom still resides in Sidney. Neither of those men furnishes an affidavit as to the contents of the indictment, nor does Mr. Bierbower, in his'letter, state that it was alleged that the crime was committed in the unor-: ganized territory. Now, can it be believed that if petitioner was “railroaded through his trial” on a void indictment, those attorneys, who are of respectable ability, to say the least, would have tamely submitted to any such proceeding without coming to the supreme court and procuring his discharge ? I think not.