51 Colo. 35 | Colo. | 1911
Lead Opinion
delivered the opinion of the court.
This is a collateral attack upon the judgment of the district court. If the court had jurisdiction to pronounce judgment, it cannot be reviewed on habeas corpus. If the court had no jurisdiction to pronounce the same, it may be disregarded on habeas corpus. After conviction, however illegal or erroneous, if the •court acted within its jurisdiction, the judgment can not be set aside on habeas corpus. This principle of' •collateral attack, runs through both the civil and criminal law.
The contention of the petitioner is, that the complaint charges no offense; hence it is a void proceeding, and the court exceeded the limit of its jurisdiction in pronouncing judgment.
The motion to discharge the petitioner on the return will be denied, and he is remanded to the custody of the warden of the penitentiary. Motion denied.
Decision en banc.
Dissenting Opinion
dissenting:
The writ of habeas corpus does not perform the ■office of a writ of error, and the remedy thereby, is limited to cases in which the judgment or sentence attacked is void. Nevertheless, if the petitioner be imprisoned under a judgment of a court which had no jurisdiction of the person or the subject matter, or authority to render the judgment complained of, or exceeded its jurisdiction in the premises, relief should be accorded under the writ. In such cases the judgment is void. Such is the principle announced by the great weight of authority. — Hurd on Habeas Corpus, (2d ed.) pp. 324, 327; Re Lane, 135 U. S. 443; Re Tyler, 149 U. S. 164; Re Swan, 150 U. S. 637.
Moreover, it is the law in this state by express terms of the statute.' Section 2919 Rev. St., pertaining to practice under the writ of habeas corpus, declares, that ■“If it appear that the prisoner is in custody by virtue of process from any court legally constituted, he can be discharged only for some of the following causes: First — Where the court has exceeded the limit of its' jurisdiction, either as to the matter, place, sum or person.”
In Re Nielsen, 131 U. S. 176, the supreme court of the United States announced the doctrine, that a petitioner should be released on habeas corpus, if the record disclosed that he had, on the trial in the lower court, been denied a constitutional right. The syllabus is as follows: “Where a court is without authority to pass a particular sentence, such sentence is void, and the defendant imprisoned under it may be discharged on habeas corpus. A judgment in a criminal case, denying to the prisoner a constitutional right, or inflicting an unconstitutional penalty, is void, and he may be discharged on habeas corpus.” In the opinion, p. 184, in speaking of the holding in Re Snow, 120 U. S. 274, it is said: “The court had authority over the case, but we held that it had no authority to give judgment against the prisoner. He was protected by a constitutional provision, securing to him a .fundamental right. It was hot a case of mere error in law, but a case of denying to a person a constitutional right. And where such a case appears on the record, the party is entitled to be discharged from imprisonment. The distinction between the case of a mere error in law, and of one in which the judgment is void, is pointed out in Ex parte Siebold, 100 U. S. 371, 375, and is illustrated by the case of Ex parte Parks, as compared with the cases of Lange and Snow. In the
In the case of Ex parte Bain, 121 U. S. 1, a demurrer was interposed to the indictment, and the court permitted the United States ■ attorney to strike out certain words therein, holding that they were surplusage. After conviction, the defendant applied to the supreme court of the United States, for a writ of habeas corpus, upon the ground, that the judgment and . sentence were void, for the reason that he was tried without a proper indictment. In the opinion discharging the petitioner the court, on page 13, said: “It only remains to consider whether this change in the indictment deprived the court of the power of proceeding to try the petitioner and sentence him to the imprisonment provided for in the statute. We have no difficulty in holding that the indictment on which he was tried was no indictment of a grand jury. The decisions which we have already referred to, as well as sound principle, require us to hold that after the indictment Was changed it was no longer the indictment of the grand jury who presented it. Any other doctrine would place the rights of the citizen, which were intended to be protected by the constitutional , provision, at the mercy or control of the court or
A court derives its jurisdiction from the law of the land, and until the forms thereby prescribed, essential to jurisdiction, are substantially complied with, no power to proceed in any particular matter is vested in any of our courts, and none can be exercised under our form of government. The constitution is the basis of our government, and procedure in direct conflict therewith, or in substantial disregard thereof, must necessarily be a nullity. Before a court can lawfully
It matters not what the general powers and jurisdiction of a court may be, if it acts without authority in the particular case, its judgment 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.
The paper signed by the district attorney and purporting to inform the court of the commission of the alleged offense by the defendant, is, in the majority opinion, called an information. This court is not concerned with, or bound by the names by which pleadings are designated. In every pleading there must be •certain essential allegations to constitute it such.. By ■constitutional mandate “all prosecutions shall be carried on in the name and by the authority of ‘The People of the State of Colorado,’ and conclude ‘Against the peace and dignity of the same.’ ” Const. Art. YI, § 30. The alleged information in this case not only fails to conclude as required by the constitution, but such essential words are nowhere found therein. It is said, that "“the omitted phrase ‘Against the peace and dignity of the same’ is a legal conclusion not entering into the •charging part of the complaint.” I cannot agree. In •one sense the constitutional requirement may be matter of form. Nevertheless, by virtue of the fact, that it is a part of the constitution, it is likewise matter
It will be observed that the information before us contains no allegation whatever, no certainty, as to what sovereign has been offended. Within the territory there were, at least, two sovereign powers exercising jurisdiction — the federal and the state. It matters not that we know that the former does not possess, and the latter does possess authority to punish for offenses of the character of that attempted to be charged herein.
It is written in our constitution, that no person shall be deprived of his liberty “without due process of law”; it is likewise declared therein, that “all prosecutions shall be carried on in the name and by the authority of ‘The People of the State of Colorado,’ and conclude ‘against the peace and dignity of the same.’ ” That instrument further declares, that prosecutions, in the courts, for felonies, shall only be upon indictment or information. Thus we have the express mandate of the constitution that an indictment or an information for a felony shall have therein the very words lacking in the information before us.
,In Cox v. State, 8 Tex. Ct. App. 254, 34 Amer. Rep., 746, after declaring that by § 12 of Art. V of the Texas constitution, “all prosecutions shall be carried on in the name and by the authority of ‘The State of Texas,’ and conclude ‘against the peace and dignity of the state,’ ” and pointing out that the indictment under consideration did not conclude “against the peace
In Rice v. State, 3 Heisk. (Tenn.) 215, 230, it was said, that an indictment “that does not conclude ‘against the peace and dignity of the state,’ is a nullity. It Is a positive injunction of the constitution itself, that such shall be the conclusion of every indictment. It is. therefore, a matter that can not be affected by legislation, and a defect that cannot be ignored by the courts. An indictment without these words is not an accusation of crime, and not án indictment in the sense of the constitution. No cohviction upon such an
Mr. Bishop in his work, New Criminal Procedure (4th ed.), vol. 1, § 651, sub. 4, after reviewing many cases upon the question now under consideration, says : "The rule derivable from all, and from the analogies of the law, would seem to be that unimportant words omitted from the constitutional form of the conclusion, or changed therein, will not necessarily vitiate it; but whatever alters the substance, even in what seems unimportant, will render it void.” After stating that the requirement, that prosecutions “shall be carried on in the name and by the authority of the state,” is held by some courts to be sufficiently complied with if the record shows it in any form, and by others to be merely directory, the author continues in § 652a, sub. 1, as follows: “The other provision — namely, as to the conclusion — has often, and it appears always, been interpreted as mandatory; even, by some or all opinions, to the extent that it can not be waived by the defendant.”
In Williams v. State, 27 Wis. 402, 403, it is said: “The constitution provides, that 'all indictments shall conclude against the peace and dignity of the state.’ This mandate is imperative, and an indictment which •does not so conclude is necessarily bad. The courts have no authority to dispense with that which the constitution requires.”
I believe I am warranted in saying that all the au-. •thorities agree that when the constitution of a state requires an indictment or information to conclude in certain forms and words, the instrument not so concluding, •either exactly or substantially, is void. Some of the
The same doctrine is announced in the Encyc. of Pleading and Practice, vol. 10, p. 441; in the 10 Amer. & Eng. Encyc. of Law, (1st ed.) 514, and 22 Cyc. 243, 244.
The rule does not obtain, though sanctioned by long usage, unless required by constitutional provision. Bolin v. State, 71 N. W. (Neb.), 444, 446.
In Cox v. State, supra, the court expressed its belief that it had consulted every accessible case in the United States wherein the question had been reviewed, and had found but two cases — that of Cain v. State, 7 Blackf. 612, (4 Blackf. 512), and Commonwealth v. Paxton, Ct. of Quar. Sess. of Chester County, Penna., published in the Legal Intelligencer, November 14, 1879, — where such defects were held mere matters of form.
I have examined Cain v. State, referred to in Cox v. State, supra, and find the case in 4 Blackf. 512, instead of 7 Blackf. 612. The indictment there under consideration concluded, “against the peace of the state.” The prosecuting attorney was permitted to amend it so as to read, “against the peace and dignity of the state.”
In some of the authorities the auestion was presented on writ of error or appeal, and not by habeas corpus, yet in all it is in effect held, that the failure do substantially comply with the requirement, renders the indictment or information void, not voidable. If the indictment or information is void, all proceedings founded thereon are equally worthless. Because one’s rights, injuriously affected by a void judgment, may be protected by a writ of error does not preclude such person from securing relief by habeas corpus. “Conviction without authority of law is unwarranted, and will justify a discharge on habeas corpus.” — Amer. & Eng. Encyc. of Law, vol. 9, p. 214; Church on Habeas ■Corpus, § 370.
In the majority opinion it is pointed out, that defendant failed to avail himself of a motion to quash, or
I am persuaded that the cases cited in the majority opinion have no application to the matters here involved. Frisbie v. U. S. 157 U. S., 160, 168, holds, that it is unnecessary that a count in an indictment should conclude that the offense was “contrary to the form of the statutes in such case made and provided, and against the peace and dignity of the United States.” It is sufficient to say that the Constitution of he United States does not require that indictments or prosecutions shall so conclude. Moreover, the common law is not in force in the United States, and that government has no common law jurisdiction, so the requirements thereof need not be observed. Furthermore, it is pointed out in the opinion that under the rule of § 1025 Rev. St, such conclusion is unnecessary. Not having been required by constitutional provision, the Congress or lawmaking power had authority to act in the premises and declare what the rules should be.
Ex parte Cain, 120 S. W. 999, does no more than announce the familiar rule, that a writ of habeas corpus is not available to affect the purpose of appeal, certiorari or supersedeas. Moreover, the question involved was the constitutionality of an ordinance, and the defendant had not yet been tried. In Caples v. State, 3 Okla. Crim. 72; 104 Pac. 493, the objection was, that the information was styled “State of Oklahoma,” plaintiff, v. W. T. Caples, defendant, instead of “The State of Oklahoma,” etc., and that the .prosecution was not carried on in the name and by the authority of the state of Oklahoma as provided by § 19, Art. VII. of its constitution which is as follows: “The style of all writs and process shall be: ‘The State of Oklahoma.’ All prosecutions shall be carried on ‘in the name and by the authority of the state of Oklahoma.’ All indict-
State v. Kirkham, 104 N. C. 911, and State v. Peters, 107 N. C. 876, instead of being authority for the conclusions reached in the majority opinion, clearly •support the rule for which I contend. Those cases arose under the constitution of that state adopted in 1868. On page 911 of the opinion in the Kirkham case, it is said:
“In our Constitution of 1776 it was provided that in■dictments should conclude, ‘Against the peace and dignity of the state.’ ” On page 918 of the opinion, it is •said:
“The constitution of 1868 omits this requirement,” and •further on the same page, “The omission in the present ■constitution of the requirement that indictments shall ■conclude, ‘Against the peace and dignity of the state’ was not made without a purpose.”
People v. District Court, 26 Colo. 380, and People v. District Court, 33 Colo. 328, are likewise inapplicable.. They arose upon the alleged unconstitutionality of a law or ordinance when the respective petitioners still Rad a remedy to test their constitutionality by writ of error, supersedeas or appeal. As I read the two Colorado cases, they hold, in effect, that when the petitioner
In the case at bar the remedy by writ of error does not seem to be open to petitioner. He sued out a writ of error and applied for supersedeas to this court. The supersedeas was denied and the writ of error subsequently dismissed. Petitioner thereafter made a motion to reinstate his writ of error, for the purpose of presenting the particular matter of which complaint is' here made. This was denied. The only recourse he appears to have is to attack the information and the judgment thereon by habeas corpus, and I think the writ awarded should be sustained, and the petitioner relieved of the effect of the judgment and sentence.