Eyman v. Deutsch , 92 Ariz. 82 ( 1962 )

UDALL, Vice Chief Justice.

This is an appeal by Frank Eyman, superintendent of the state prison, from an order and judgment granting the petition of Sam Deutsch (hereinafter referred to as defendant) for a writ of habeas corpus, and from an order discharging the defendant from confinement in the Arizona State Prison.

The facts are that in Cause No. 31616 and in Cause No. 31621 in the Superior Court of Maricopa County the defendant, with his co-defendant Crosby G. Holden, was charged with criminal conspiracies under A.R.S. § 13-331. It is alleged that the defendant and Holden conspired, combined and confederated to commit the crime of grand theft by false and fraudulent representations. The defendant pleaded guilty to Count III in Cause No. 31616 and to Count II in Cause No. 31621 and, on the 20th day of October 1958, was sentenced to serve a term of one year on each count, to run consecutively. Defendant’s co-defendant Holden stood trial and on the 8th day of October 1958 was acquitted under Count II in Cause No. 31621.

Defendant, having served the period of his punishment under Count III contends that he was entitled to be discharged from custody on Count II because of the acquittal of his co-defendant thereunder. He also contends that his sentence on Count II of Cause No. 31621 was and is void and that he should be discharged by operation of law since his alleged co-conspirator was acquitted.

The superintendent contends that the defendant cannot make a collateral attack on the judgment and sentence made by the Superior Court of Maricopa County; that the Superior Court of Pinal County did not have jurisdiction to issue the writ of habeas corpus; that the Superior Court of Maricopa County had and retained at all stages of the proceedings jurisdiction of the person and subject matter in the action; that the judgment and sentence was at most voidable and not void; that the judgment for writ of habeas corpus cannot be invoked by the Superior Court of Pinal County to review the judgment and sentence of the Superior Court of Maricopa County, and that the acquittal of the co-defendant Holden did not absolve the defendant from a plea of guilty by operation of law. These assignments of error are without merit.

The issues raised by the.appeal are; (1) May the judgment and commitment of the Superior Court of Maricopa County be collaterally attacked by a petition for a writ of habeas corpus filed in the Superior Court of Pinal County? (2) Did the Superior Court of Maricopa County have jurisdiction to enter its judgment and sentence? And (3), does the acquittal of a co-conspirator operate as an acquittal of the other co-conspirator who has pleaded guilty to the same conspiracy?

In this case the crime of conspiracy is involved¹ and the defendant concedes that the petition for a writ of habeas corpus constitutes a collateral attack upon the judgment of the Superior Court of Maricopa County. Defendant asserts, however, that habeas corpus is a proper remedy where the judgment is void for lack of jurisdiction. In Oswald v. Martin, 70 Ariz. 392, 396, 222 P.2d 632, 635 (1950), we quoted the following with approval:

“The sole question involved is that of jurisdiction * * • * that is, the question as to whether the court had jurisdiction of the person of the petitioner and of the subject matter, and according to prevailing view, power to render the particular judgment.”

We quoted further that:

“It is undoubtedly the law that upon habeas corpus cognizance can be taken only of defects of a jurisdictional character, which render the proceeding under which the petitioner is imprisoned not merely erroneous, but absolutely void.” Oswald v. Martin, 70 Ariz. at 397, 222 P.2d at 635.

Article 6, section 6 of the Arizona Constitution provides for the use of the writ of habeas corpus in the county where any person is in actual custody.² It is clear in this case that the defendant, who was in the custody of the superintendent of the prison in Pinal County, Arizona, had the legal right to apply for a writ of habeas corpus to the superior court of that county, the place where he was being detained.

As to the second and third issues raised by the appeal, it is conceded by the defendant that the Superior Court of Maricopa County had jurisdiction over the subject matter of the offense and over the person of the defendant, but it is contended that the court did not have jurisdiction to render the kind of judgment that was rendered. In Collins v. Superior Court, 48 Ariz. 381, 393, 62 P.2d 131, 137 (1936), we said:

“ * * * ‘jurisdiction,’ particularly as applied in a case involving a collateral attack on a judgment, has been discussed by us many times. The case of Tube City Min. & Mill. Co. v. Otterson, 16 Ariz. 305, 146 P. 203, L.R.A.1916E, 303, goes into the matter •very fully and points out that when jurisdiction in this sense is considered, there are three things which must appear: (a) Jurisdiction of the person; (b) jurisdiction of the subject-matter; .and (c) jurisdiction of the court to render the particular kind of a judgment in the instant case which it did render, and that if these three elements occur, the judgment is invulnerable as against collateral attack, except for fraud.”

In Wall v. Superior Court, 53 Ariz. 344, 352, 89 P.2d 624, 628 (1939), we again recognized the three jurisdictional requisites necessary to keep the action of a court from being void:

“We have frequently had before us the question as to what is meant by ‘jurisdiction’. ‘Jurisdiction’ is of three kinds, (a) of the subject matter, (b) ■of the person, and (c) to render the particular judgment which was given. City of Phoenix v. Greer, 43 Ariz. 214, 29 P.2d 1062. In order that a judgment be proof against attack by certiorari, the inferior tribunal must have all three of these kinds of jurisdiction.”

We hold that in order to meet the third requirement the court must have the power to pronounce judgment under the law and ;the existing facts. It is the law that in the crime of conspiracy one or more persons must conspire together to commit an act and that their thoughts and plans must be coupled with an overt act.

The weight of authority seems to be that if one of the two alleged co-conspirators is acquitted the conviction of the other co-conspirator may not stand. People v. Regan, 351 Ill.App. 550, 115 N.E.2d 817 (1953); United States v. Wray, 8 F.2d 429 (D.C.Ga.1925) ; United States v. Hamilton, 26 Fed.Cas. p. 90, No. 15,288.

“It seems to have been an unbroken rule at common law, with cases on the point dating as early as A.D. 1410, that, when only two are charged with a conspiracy, and one of them is acquitted, the conviction of the other is void.” DeLaney v. State, 164 Tenn. 432, 436, 51 S.W.2d 485, 487 (1932). See generally Annot., 72 A.L.R. 1180, 1186-88 (1931). Cf. Morrison v. People of State of California, 291 U.S. 82, 54 S.Ct. 281, 78 L.Ed. 664 (1934).

We therefore hold that the pronouncement of a judgment of conviction of the defendant for a conspiracy and the imposition of sentence thereon in Count II of Cause No. 31621 was void. The sentence was imposed after the court had full knowledge of the acquittal of the co-conspirator and the acquittal of Holden operated as an acquittal of the defendant.

Judgment affirmed.

BERNSTEIN, C. J., and LOCKWOOD, J., concur.

1 . Conspiracy is defined in A.R.S. § 13-331, as follows:

“A. It is unlawful for two or more persons to conspire to:

“1. Commit any crime. * * * ”

A.R.S. § 13-332 provides:

“No agreement, except to commit a felony upon the person of another, or to commit arson or burglary, amounts to a conspiracy unless some act besides such agreement is done to effect the object thereof by one or more of the parties to the agreement.”

2 . Art. 6, § 6 of the Arizona Constitution, A.R.S. reads in pertinent part as follows: “Superior courts and their judges shall have the power, to issue * * * writs of habeas corpus on petition by, or on behalf of, any person in actual custody in their respective counties.”