134 P. 1175 | Utah | 1913
On the 25th day of February, 1913, a complaint under the statute was filed in the office of one E. L. Jones, a justice of the peace in and for Provo Precinct, Utah County, Utah, in which it was charged that the appellant, on the 21st day of February, 1913, “at Utah County, State of Utah, . . . did then and there willfully and unlawfully sell, furnish, and deliver to Frank Walker intoxicating liquor, to wit, one pint of whisky, without first procuring a license so to do as provided by law; he (the said H. S'. Bruce, appellant) then and there not being a registered pharmacist, druggist, licensed pharmacist, or wholesale druggist, contrary to the provisions of the statute,” etc. Trial before said justice upon said complaint resulted in a conviction, and appellant was sentenced to imprisonment in the county jail of Utah County as provided by statute. After said conviction and commitment appellant presented his petition to the district court of Utah County asking that he be discharged from said imprisonment upon the ground that the judgment of conviction was illegal and void. The district court duly issued a writ of habeas corpus but upon a hearing quashed the same and refused to discharge the appellant and entered judgment remanding him back to the custody of the sheriff of Utah County, from which judgment he appeals.
“Justices’ courts have jurisdiction of tbe following public offenses committed within tbe respective counties in which such courts are established.”
Then follows an enumeration of tbe offenses of which such justices’ courts have jurisdiction, which includes tbe one charged. .
Counsel for appellant concede at tbe outset tbat, if tbe appellant bad been charged with having committed an assault and battery or petit larceny or other misdemeanor within tbe justice’s jurisdiction, tbe justice would have bad jurisdiction, although no particular place where tbe offense was committed was stated therein if it occurred' within tbe county in which the justice held his office. They, however, insist that such is not the case where the statute requires the place of sale to be stated. Chapter 106, under which appellant was prosecuted (Laws Utah 1911, section 36), provides:
“In all prosecutions under this act, ... it shall be necessary to state the time and place of sale but shall not be necessary to state the kind of liquor sold, nor to describe the place where sold.”
If it be held' that the particular place where the liquor was sold should under all circumstances be alleged in the complaint, yet the question to be determined on this appeal is whether a failure to do so in any way affects the jurisdiction of the court in which the conviction is had. We are clearly of the opinion that the omission constitutes merely
“After judgment the sufficiency of the complaint cannot be reviewed or considered on habeas corpus but only on appeal. Habeas corpus tabes cognizance only of defects of a jurisdictional character, which render the proceeding not merely voidable but absolutely void.”
Among the numerous cases which support the foregoing quotation we refer to the following: State v. Sheriff, etc., 24 Minn. 87; State v. Riley, 116 Minn. 1, 133 N. W. 86;
In the last case cited the rule is laid down in the headnote, which in Nebraska controls, in the following words:
“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 in said' criminal proceedings, if by any possible construction of the language employed therein an offense against the law is thereby even defectively stated.”
-Indeed, counsel for appellant concede in their brief that, unless we make an exception in this case because of the statutory requirement referred to, hateas corpus is not the proper remedy. We are clearly of the opinion that the statute does not require such an exception to be made, and hence we can make none. We hold, therefore, that, while under the statute the place of sale should be stated in general terms, yet a failure to do so is not jurisdictional and is not an essential ingredient of the offense charged and hence does not vitiate the judgment of conviction. Further that, unless the complaint fails to state some jurisdictional fact or some essential ingredient constituting the offense sought to be charged whereby the court is left without jurisdiction, a judgment of conviction will not be reviewed on hateas ■corpus, but the error, if reviewed at all, must be done on appeal.
