Witte v. Dowd, Warden , 230 Ind. 485 ( 1951 )

Emmert, J.

This is an appeal from a judgment entered upon an order of the trial court sustaining a motion to quash a writ of habeas corpus.

The complaint for the writ disclosed the following proceedings and judgment had in the Superior Court of LaPorte County on the 28th day of September, 1936, to-wit:

“Comes now the State of Indiana, by Clarence T. Sweeney, Deputy Prosecuting Attorney, and comes also the defendant in his own proper person, and being present in open court, and being arraigned and being required to say how he will acquit himself of the charge made against him in the affidavit filed herein, for plea thereto says that he is guilty as charged, to-wit: Forgery and Habitual Criminal, and the court now finds said defendant guilty as charged.

“The court further finds said defendant’s age to be twenty-nine (29) years.

“It is therefore considered, adjudged and decreed by the court that said defendant, for the offense by him committed be sentenced to the Indiana State Prison, for and during the period of his life, from this date.

". . ." ¹

The record does not contain a copy of the affidavit or indictment under which appellant was prosecuted, but on review we must consider that such pleading contained a proper charge of forgery and two prior convictions, sentences and imprisonment in some penal inst'itution for felonies pursuant to the requirements of §§9-2207, 9-2208, Burns’ 1942 Replacement. Crawford v. Lawrence (1900), 154 Ind. 288, 56 N. E. 673; Goodman v. Daly, Warden (1929), 201 Ind. 332, 165 N. E. 906.

The motion to quash the writ admitted the facts well pleaded in the complaint. Schleuter v. Canatsy et al. (1897), 148 Ind. 384, 47 N. E. 825; Willis v. Willis (1905), 165 Ind. 325, 75 N. E. 653. It tested the sufficiency of the complaint the same •as a demurrer for want of facts in an ordinary action. McDonald v. Short, Supt. (1921), 190 Ind. 338, 130 N. E. 536; Dinkla v. Miles (1934), 206 Ind. 124, 188 N. E. 577.

“A writ of habeas corpus is an ancient common law remedy for imprisonment without just cause, the origin of which is obscure by reason of its great antiquity. Harold Hulme, Our American Heritage: Freedoms Derived from the English Constitution 32 Am. Bar Assn. J. 849, 851; 25 Am. Jur. 144, 145, §3; 29 C. J. 7, §1; 39 C. J. S. 426, §1. By virtue of its recognition in the Bill of Rights of the Constitution of Indiana, the privilege of the writ exists independent of the statute and flows from our constitution for the protection of all whose liberty may be restrained under unlawful authority. The common law origin of the writ is recognized in Wright v. The State (1854), 5 Ind. 290, 294, as follows:

“ ‘. . . Its great object is the liberation of those who may be imprisoned without just cause, and it has been so favorably regarded in this country, that the provisions of the English act, 31 Charles 2, chap. 2, have been substantially adopted by the several states. We have even gone further, and by the 27th section of the bill of rights in our constitution provided, that “the privilege of the writ of habeas corpus shall not be suspended, except in case of rebellion or invasion; and then only if the public safety demand it”.’

Although the Legislature has made and provided reasonable regulation for its use (§§3-1901 to 3-1925, Burns’ 1946 Replacement), the writ is not a statutory remedy in a strict sense of the term, but rather a remedy recognized and continued by the Constitution.” State ex rel. Allen v. Fayette Circuit Court (1948), 226 Ind. 432, 434, 435, 81 N. E. 2d 683, 684.

“The right of a writ of habeas corpus is a part of the law of the land . . .” State ex rel. Eggers v. Branaman (1932), 204 Ind. 238, 247, 183 N. E. 653. This right has been a part of the law of this jurisdiction since the Ordinance of 1787.² Unfortunately many of the cases have not clearly recognized that the substantive right recognized and continued by the organic law of this state, is a common law right made a constitutional right, and thus beyond the power of the Legislature to impair.³ As was said by the Court of Appeals of New York in an opinion by Allen, J., “This writ cannot be abrogated, or its efficiency curtailed, by legislative action. Cases within the relief afforded by it at common law cannot, until the people voluntarily surrender the right to this, the greatest of all writs, by an amendment of the organic law, be placed beyond its reach and remedial action. . . .

“The remedy against illegal imprisonment afforded by this writ, as it was known and used at common law, is placed beyond the pale of legislative discretion, except that it may be suspended when public safety requires, in either of the two emergencies named in the Constitution.” People ex rel. Tweed v Liscomb (1875), 60 N. Y. 559, 566, 567, 19 Am. Rep. 211. The statement in State ex rel. Barnes v. Howard (1946), 224 Ind. 107, 109, 65 N. E. 2d 55, that “Habeas corpus is a statutory proceeding in the State of Indiana,” is specifically overruled. If it be purely statutory, the legislature could then abolish the right to the writ. The legislature could enlarge the right, but the Constitution prohibits any impairment of the right.⁴

It is appellant’s contention here that the judgment was void for the reason the trial court failed to pronounce a sentence of imprisonment against appellant for a specific term on the forgery charge as prescribed by §9-2208, Burns’ 1942 Replacement. In determining this question we are not limited to the judgment as it appears in the commitment set forth as an exhibit to the complaint, and properly construed, Clause 2 of §3-1918, Burns’ 1946 Replacement [Acts 1881 (Spec. Sess.), ch. 38, §790, p. 240], which prohibits an inquiry into the legality of any judgment or process issued on any final judgment of a court of competent jurisdiction, does not and cannot constitutionally prohibit an inquiry into the jurisdiction of the court rendering the sentence as determined by the intrinsic record of that court, and the process issued pursuant thereto.⁵

In 1854 this court in construing a similar provision of 2 R. S. 1852, held, “This question of jurisdiction the judge had a right to inquire into on the hearing upon habeas corpus, both upon general principles of law, and under our statute. The statute is (2 R. S., p. 195, s. 725) that the judge, on such hearing, when the prisoner is held ‘upon any process issued on any final judgment of a Court of competent jurisdiction,’ shall not discharge, &c., plainly implying that the question of jurisdiction is open to inquiry.” Miller v. Snyder (1854), 6 Ind. 1, 3. This same construction was given this provision in Smith v. Clausmeier (1893), 136 Ind. 105, 113, 114, 35 N. E. 904, where the court, in discussing the right and duty of the court in habeas corpus proceedings to determine the jurisdiction of the court whose orders or judgments are attacked, said:

“In relation to the statutory provision (R. S. 1881, section 1119) prohibiting any court or judge from inquiring into the legality of any judgment or process whereby the party is in custody, or from discharging him when the term of commitment has not expired, in certain named cases, one being when he is held ‘upon any process issued on any final judgment of a court of competent jurisdiction,’ it has been well said by Mr. Church, in his work on Habeas Corpus (2d ed.), section 81: ‘We apprehend that the true construction of such a statute leaves the question of jurisdiction always open. To bar the applicant from a discharge, by means of habeas corpus, the court in which the judgment was rendered, or from which the process was issued, must have had jurisdiction to render such judgment. The tribunal must be competent to render the judgment under some circumstances. The prohibition forbidding the inquiry, by a court or judge, into the legality of any previous judgment or process, does not, and can not without nullifying, to some extent, the general principles governing the issuance of the writ of habeas corpus, take from the court or judge the power, or relieve him from the duty of determining whether the judgment or process emanated from a court of competent jurisdiction; and whether the court rendering the judgment, or issuing the process, had the legal and constitutional power to render such judgment or send forth such process. It simply prohibits the review of a decision of “a court of competent jurisdiction.” * * * Where it appears that the relator is detained under the process, or under the final judgment of a court of competent jurisdiction, it is the duty of the court to remand him, unless it is shown that the process issued, or that the judgment was rendered without jurisdiction; and this the relator may always show, notwithstanding the statutory prohibition.’ ”⁶

“A writ of habeas corpus raises the question of the jurisdiction of the court over the persons and over the subject-matter, and also his jurisdiction to enter the particular judgment which he does enter.” Kabanya v. Fogarty (1923), 193 Ind. 297, 301, 139 N. E. 449, 450.⁷ In view of the many confusing statements about the nature and extent of jurisdiction, we feel the reasoning of Mr. Justice Field in Re Bonner (1894), 151 U. S. 242, 256, 257, 14 S. Ct. 323, 38 L. Ed. 149, 151, is particularly pertinent. He wrote, “There has been a great deal said and written, in many cases with embarrassing looseness of expression, as to the jurisdiction of the courts in criminal cases. From a somewhat extended examination of the authorities we will venture to state some rule applicable to all of them, by which the jurisdiction as to any particular judgment of the court in such cases may be determined. It is plain that such court has jurisdiction to render a particular judgment only when the offense charged is within the class of offenses placed by the law under its jurisdiction; and when, in taking custody of the accused, and in its modes of procedure to the determination of the question of his guilt or innocence, and in rendering judgment, the court keeps within the limitations prescribed by the law, customary or statutory. When the court goes out of these limitations its action, to the extent of such excess, is void. Proceeding within these limitations, its action may be erroneous, but not void.”⁸

The proceedings for the writ of habeas corpus in this state where the jurisdiction of the court in a criminal prosecution is involved do not put in issue matters dehors the record. Dinkla v. Miles (1934), 206 Ind. 124, 188 N. E. 577, sttpra.⁹ The record is the court’s intrinsic record, and when process is questioned it is the process issued pursuant to such intrinsic record. The truth of the record cannot be impeached on habeas corpus. “If the process is valid on its face, it will be deemed prima facie legal, and the prisoner must assume the burthen of impeaching its validity by showing a want of jurisdiction. Error, irregularity, or want of form, is no objection; nor is any defect which may be amended or remedied by the court from which it issues. If there was no legal power to render the judgment or decree, or issue the process, there was no competent court, and consequently no judgment or process. All is coram non judice and void.” People ex rel. Tweed v. Liscomb (1875), 60 N. Y. 559, 571, 19 Am. Rep. 211, supra.

The complaint by Witte did put in issue the jurisdiction of the trial court to render the judgment it did and the validity of the commitment for life imprisonment.

A finding of guilt is unnecessary where there is plea of guilty. Ewbank’s Indiana Criminal Law (2d Ed.), p. 242, §375. “Upon a plea of guilty, or actual confession in open court, the court has nothing to do but fix the amount of punishment and render judgment or sentence accordingly. There is nothing for the court to find. The prisoner, by his confession, has made a finding unnecessary.” Griffith v. State (1871), 36 Ind. 406, 408.

A plea of guilty, as charged, to an indictment or affidavit charging previous convictions admits not only the crime charged for which the accused is being prosecuted, Meyers v. State (1901), 156 Ind. 388, 59 N. E. 1052, but also the prior convictions. People v. Wilson (1947), 396 Ill. 191, 71 N. E. 2d 8; U. S. ex rel. Derencz v. Martin (1930), 36 F. 2d 944; Jenness v. State (1949), 144 Me. 40, 64 A. 2d 184; 24 C. J. S. 1158, §1964. After a plea of guilty, no finding of guilt is necessary on the new offense, nor under such circumstances is a finding of previous convictions necessary under the habitual criminal statute.

The trial court failed to enter a sentence of imprisonment for forgery before proceeding to sentence appellant to imprisonment for life, but in our opinion this does not make the judgment void. The record in this appeal presents an issue somewhat similar to the issue decided in Goodman v. Kunkle (1934), 72 F. 2d 334. Goodman had been charged in the Superior Court of St. Joseph County, Indiana, with burglary, larceny and being an habitual criminal. The jury returned the following verdict: “‘We, the Jury, find the defendant, John P. Goodman, guilty of burglary as charged in count one of the indictment, and find his age to be 39 years, and that the defendant is an habitual criminal.’ ” The judgment of the trial court on the verdict was “That the defendant ‘be and he hereby is sentenced to imprisonment in the Indiana State Prison for life and that he be and he hereby is disfranchised from holding any office of trust or profit for a period of twenty-five (25) years.’ ” The Seventh Circuit Court of Appeals construed §§9-2207 and 9-2208, Burns’ 1942 Replacement, and after reviewing the Indiana authorities, held the judgment was not void and said, in an opinion by Judge Alschuler, that Goodman “was in no wise harmed by the failure of the court to impose, additionally to the life sentence, the statutory sentence specified for the particular crime.”

Nor is the appellant Witte in any position to complain there was a want of jurisdiction because he did not receive a sentence of imprisonment for forgery of from two to fourteen years as prescribed by §10-2102, Burns’ 1942 Replacement, since the maximum sentence for life was required in any event under the habitual criminal act. The failure to impose the sentence for forgery was an irregularity, but it did not deprive the trial court of jurisdiction to impose the sentence for life, and the judgment is not void and subject to a collateral attack by habeas corpus.

It should be noted that we are not holding the trial court did not commit reversible error if the defect in the judgment had been presented on appeal from a ruling of the trial court overruling a proper motion to modify the judgment to conform to the statute. See Ewbank’s Indiana Criminal Law (2d Ed.) §731, p. 554.

Judgment affirmed.

Gilkison, C. J., dissenting.

1 The State was unsuccessful in its effort to correct this judgment nunc pro tunc. Witte v. State (1950), 228 Ind. 153, 90 N. E. 2d 802.

2 “The inhabitants of the said territory shall always be entitled to the benefit of the writ of habeas corpus, and of the trial by jury ...” Article 2, Ordinance of Congress 1787.

“ . . . and the privilege of the writ of habeas corpus shall not be suspended, unless, in case of rebellion or invasion, the public safety may require it.” Article 1, §14, 1816 Constitution of Indiana.

“The privilege of the writ of habeas corpus shall not be suspended, except in case of rebellion or invasion; and then, only if the public safety demand it.” Article 1, §27, Bill of Rights, Constitution of Indiana.

3 “It [the Federal Constitution] assumes the existence of the privilege, and provides against its infringement, even by the highest power in the state.” Hurd, Habeas Corpus (2d Ed.) p. 106.

“It was brought to America by the colonists, and claimed as among the immemorial rights descended to them from their ancestors.” Ex parte Yerger (1869), 8 Wall. 85, 19 L. Ed. 332, 336.

See also 25 Am. Jur. 145, §3.

4 For a compx-ehensive discussion of the common law on habeas corpus see 3 Hill (N. Y.) 647 et seq.

5 “No court or judge shall inquire into the legality of any judgment or process whereby the party is in custody, or discharge him when the term of commitment has not expired, in either of the eases following:

“Second. Upon any process issued on any final judgment of a court of competent jurisdiction.” Section 3-1918, Burns’ 1946 Replacement.

6 See 25 Am. Jur. 187, §56 for further discussion on constitutional right to inquire into jurisdiction of the court.

7 Lack of jurisdiction to render particular judgment makes it subject to attack by habeas corpus. Miller v. Allen (1858), 11 Ind. 389.

8 “Jurisdiction in a particular case is not only the power of the court to hear and determine but also the power to render the particular judgment entered, and every act of the court beyond its jurisdiction is void. (Ex parte Reed, 100 U. S. 13; Chicago Title and Trust Co. v. Brown, 183 Ill. 42.) The jurisdiction of a court or judge to render a judgment is always a proper subject of inquiry on habeas corpus, and is, in fact, the primary, and generally the only, subject open to inquiry.” People v. Siman (1918), 284 Ill. 28, 32, 119 N. E. 940.

“The Modern Rule is that even where a court has jurisdiction of the offense charged and of the person of the accused, it may so far transcend its powers in assessing the penalty for the oifense, by imposing a punishment of a character different from that prescribed by law, or otherwise, that the sentence will be void. . . .” Vol. 15, Encyclopedia of Law (2d Éd.), p. 170.

“It matters not what the general powers and jurisdiction of a court may be; if it act without authority in the particular case, its judgments and orders are mere nullities, not voidable, but simply void, protecting no one acting under them, and constituting no hindrance to the prosecution of any right.” People ex rel. Tweed v. Liscomb (1875), 60 N. Y. 559, 568; 19 Am. Rep. 211, supra.

See also 25 Am. Jur. 185, §55, on requisites of jurisdiction.

9 The present federal rule is that “Questions of fundamental justice protected by the Due Process Clause may be raised, to use lawyers’ language, dehors the record.” Carter v. Illinois (1946), 329 U. S. 173, 175, 67 S. Ct. 216, 218, 91 L. Ed. 172, 175. The writ of error coram nobis is available in Indiana to present an issue as to a judgment being void for matters dehors the record.