Ex parte Willke

Ogden, J. The applicant in this case was arrested by virtue of a warrant from a justice of the peace, on the charge of theft of eleven doors, and was committed to jail on failure to give a bond for his appearance, in the sum of six hundred dollars. The applicant sued out a writ of habeas corpus before the district judge of the twenty-sixth judicial district, who, after hearing the evidence, remanded the applicant to jail in default of bail as fixed by the justice of the peace, and he has now appealed to this court for a revision of that judgment. It is claimed by counsel for the applicant that their client should be discharged, because the doors.charged to have been stolen, when taken, were attached to the house as a part of the realty, and therefore'under our laws not a subject of theft. We are hardly willing to follow the very refined distinction taken by Chief Justice Gibbs, as cited by counsel, since, if the applicant took the doors a s charged, some one must have taken them from their hinges, and as soon as that was done the doors became personal property, and properly the subject of theft. Besides, the applicant had the doors in his possession for some time, hauling them to town for sale. There is no evidence' that he took the doors from their hinges, but there is evidence that he had them in possession as personal property, recently after the theft; and we are of the opinion that if the 159 applicant took the doors from the house as charged, and after-wards sold them or otherwise converted them to his own use and benefit, without the consent of the owner, and with the intent to deprive the owner of the value of the same, then he is morally and legally guilty of theft; and that it is not the duty or province of the court to invoke a presumption of a refined technicality, in order to save an acknowledged criminal and thief from certain, speedy and condign punishment. The judgment of the district judge on the return of the writ of habeas corpus, is in all things affirmed. Affirmed.