*1 timony subject. Craig, other the same witnesses Company Exrx. (1940), v. Citizens 217 Ind. Trust 434, 450, 1006, 1012; E. 2d Hicks v. 26 N. 277, 293, 11 However, N. E. under 2d 178.
attending case, say that circumstances of this we cannot right by sustaining objection, court refused error. committed cross-examination and reversible Although permit the witness to an the court refused to general question whether swer as the broad and regard testimony previous witness not the of the correct, ing substantially property the court testify specific permit each did the witness previous aspect testimony witness when witness property related of the second specific propounded. Under these questions were later right of circumstances, denial of there was no cross-examination.
Judgment affirmed. J., Landis,
Arterburn, J., concur. C. J.,
Jackson,
concurs in result.
opinion).
Bobbitt, J.,
(without
dissents
Reported in
[No. *2 Steers, Attorney General, K. C. Edwin Richard General, Johnson, Deputy Attorney for appellant Baker, Defender, and A. Robert S. Public Thomas Hoadley, Deputy Defender, appellee. Public brought an J. —The action for
Achor, against corpus In- writ of habeas Warden-.of the. the: diana State of LaPorte Prison in the Court County, claiming under which void, and that Criminal committed was was County juris- Division no Court Two Marion had imposed enter the sentence diction to granted the writ him. LaPorte Circuit appeal corpus, from which taken the Warden. prisoner appears from record that counts,
tried convicted two one auto on banditry, a which carried determinate sentence twenty-five years, a and another on ten count which carried an indeterminate sentence twenty-five years. ten to 439, 140
In Mims et
al.
appeal
on
N. E.
in a similar situation
2d
counts,
one of which was
two
conviction
*3
other,
the
the court
in
we held
included
that
sentencing
on two
erred
the defendant
in
judgment
be
should
further
that a
counts. We held
sentenced
defendant
should be
entered and
the
that
greater
only.
hold in
We
offense
did
on the
judgment
urges,
case,
appellee
the
here
jurisdiction
impose
lacked
void in that
the court
erroneous sentence.
appeal points
out
in this
The
provides:
of this state
statute
inquire
judge
the le-
into
“No court or
shall
whereby
process
gality
discharge
custody,
him when
in
party is
expired
in either
of commitment has
term
the cases
following:
any final
any process issued on
Upon
“Second.
jurisdiction.”
competent
judgment of a court
Repl.
§3-1918,1946
Burns’
been,
long
state,
has
law
as well as
jurisdictions,
all
jur
other
that courts
coordinate
power
isdiction do not have the
to review or
correct
a
the errors
each
other
habeas
corpus
Judgments
proceeding.
of such courts
complained
are
presented
final
unless
error
of is
proper
reviewing
appeal
court,
a
to the
the ex
ception being
the erroneous
action of
jurisdiction and, therefore,
is
lawful
outside its
void.
entirely,
The
relies
so far as we can de
termine, upon
case of Witte
485, 496, 497,
230 Ind.
An examination of that case reveals that appellee. help of no The in that gives. case, scholarly history review of the corpus. opinion proposi writ of habeas states the corpus persons tion that habeas is available to all liberty by judg restrained their reason of void coupled discourse ments. This with extended dis void, distinguished cussion as to what are merely judgments. However, voidable end affirmed the action of the trial and denied corpus. Therefore, writ statements made case, which were not material decision relies, merely here were dicta. case, the
In the above cited LaPorte Circuit Court to examine final was asked another case the court. In that trial trial court failed enter imprisonment forgery a formal sentence before *4 appellant proceeding sentence the for to life as judgment criminal. The held court habitual that erroneous, void, merely was not but and that sentencing jurisdiction. had The court in that following opinion comment: made the a sentence “The trial failed to enter imprisonment forgery proceeding to for before imprisonment for life [as sentence to criminal], opinion an not make the habitual but in our does judgment void....” impose forgery The failure sentence for to irregularity, deprive it was an trial court of for did but jurisdiction impose to the sentence subject life, and and not void corpus.” á attack Wit to v. collateral supra, Dowd, Warden, pp. 496, 497. ' upon in commented the Witte All other matters upon by case, supra, appellee, here and relied as right authority for the LaPorté Circuit Court go review back of the and to examine regarded trial can of another be action only application to dicta which had no the issue opinion, case. The presented the court controlling precedent therefore, provide does at bar. the case decision jurisdiction” frequently “lack of term Far too sup- a catchall loosely overworked as used premise remedy. is then port a From such desired argued of a “void.” can- all actions are We jurisdiction” indiscriminately “lack of not ascribe remedy, achieving every however‘desir- a basis able. general juris court had us the
In the case before subject matter, namely, the crimes- in diction -jurisdiction of the also had The court volved. theory it- no can be party involved. Under jurisdiction urged -in lack there was Court, Two, or Division Marion Criminal contrary most, it was void. At the judgment was recognized fact erroneous. This therefore law and Dowd, War of Shoemaker recent case in the more *5 443, 607, den 115 N. E. 2d which limits-, in the Witte case, the and dicta criticizes supra. denying case, in In the Shoemaker writ corpus, this court stated: by from appeal the “No was taken
the Having the Hamilton Court. Circuit right, himself of this failed to avail cannot, corpus pur- use a of habeas for the writ pose appeal.” of an give Furthermore, we must consideration to Witte fact since case of (1951), supra, 2-40B, promulgated Rule this court has provides Which follows: ap- “Correction Sentence. Whenever shall pear from the and final or affidavit indictment judgment sentence has any criminal an erroneous cause that imposed by the trial been any petition may in such cause at time defendant retroactively the trial judgment to such correct conform, imprisonment to to the term of specified applicable upon proper statute serving (By copy petition per- notice. .a mail) Prosecuting by Attorney
son Attorney and the General of Indiana. the circuit may- Supreme appeal be taken to the An granting denying pe- a final order said from pro- same and under the rules conditions tition vided 2-40 2-40A rules this Court. Ef- 16,1954.” November fective is, procedure approved result case, supra, upon by Witte here ap relied remedy
pellee, nullified has been af rule, gives expressly forded the above which right apply to to the judgment. for a correction of the him sentenced appeal provides for an It also denial petition. such appears us here has been
It erroneously lesser included offense sentenced sentenced on the and should have been only. banditry appears conviction of auto also remedy pursuant appellee’s application make 2-40B, Court, swpra, Di Marion Rule Criminal error, apparent Two, vision for correction believe, in which we have reason to view of de *6 supra State, Mims et al. v. cision of in this (236 878), granted 439, 140 N. E. 2d will be promptly. judgment re-
The of LaPorte Court is the Circuit versed, with directions sustain motion quash herein. the writ Landis, J.,
Arterburn, J., and C. concur.
Bobbitt, J., participating. Jackson, J., opinion. dissents with Opinion.
Dissenting appeal the Warden J. —This is Jackson, judgment of the Indiana State Prison discharging ap- County, of LaPorte pellee from Indiana Prison. State in two an indictment
The record discloses that against appellee and another counts was filed Indiana, County, Division of Marion Criminal Court in- Two, one of in No. CR 7136-Z. said Count cause charged of rob- appellee with the offense dictment charged appellee with bery; two and count thereof banditry. automobile crime of guilty resulting by jury, verdicts in Trial was In, we case of the issues both counts. view on and the entered both the verdicts set out follows: is verdict as thereon. defendant, Linley Jury, “We the find the Carl [Lindley] banditry Todd, guilty of automobile
charged in the second the indictment count of age that be im- is unknown and he that prisoned years. for Ten Steen,
A. Foreman C. “We, Linley jury, defendant, find the Carl [Lindley] charged Todd, guilty robbery as (cid:127)the first count be indictment holding incapable disfranchised and rendered period office of profit trust years age 10 defendant and we further find that is unknown. Steen,
A. Foreman.” C. The trial entered on the verdicts as follows: jury “And the verdicts of the the Court finds Linly defendant, [Lindley] Todd, Carl guilty of the crime of crime banditry charged 36 automobile all the Indict- ment; age years; that his true the de- fendant, Linly [Lindley] Todd, Carl should be im- prisoned years Indiana Prison for ten banditry; the crime automobile *7 defendant, Linly [Lindley] Todd, Carl should be imprisoned in the Indiana Prison State for not years years less than ten more nor than 25 for robbery the crime and for' said crime of defendant, Linley [Lindley] Todd, Carl should be holding incapable disfranchised any and rendered profit years. or office trust for ten ORDERED, “IT IS THEREFORE ADJUDGED by defendant,
AND DECREED the that the [Lindley] Todd, Linly be, hereby, Carl and sen- is period to Indiana tenced ten the State Prison for years crime of banditry; for the automobile ordered, adjudged further is and decreed defendant, Linly court the the Carl [Lindley] Todd, be, the crime of and hereby, sentenced Indiana to the State Prison years 10 than less nor more for not than years incapable disfranchised and rendered and profit holding any office of trust pay the' costs years; herein defendant are costs until said stand committed herein or paid stayed. charged County is Sheriff of Marion “And the judgment.” of this the due execution with judg- concluded, and verdicts rendered was Trial Immediately January 22, pronounced 1952. on ment judgment, of the court’s after rendition commit- transported appellee to was were issued and ments Indiana State Prison. and confined Pe- 25, 1960, his Verified filed On October Corpus Su- Habeas tition for a ofWrit LaPorte perior Court, ordered issued and the writ day. 1, 1960, appellant filed a same On November being Quash writ, same over- Motion with to 22, 1960, ap- November 1960. On November ruled Thereafter, pellant Return the Writ. filed his 23, 1960, appellee Exceptions November his filed Appellant’s Corpus Return Habeas Writ hearing date, on the same after evidence and. .the matter, unlawfully found that liberty by restrained of entered and. , judgment on the same date as follows: AND “IT THEREFORE IS CONSIDERED said ADJUDGED CARL ought LINDLEY TODD be released from said adjudged further restraint. considered and by the said CARL LINDLEY discharged hereby TODD be and he is from said restraint, imprisonment, detention custody DOWD, ALFRED the said F. War- go Prison, den Indiana and that he hence without restraint. day November, 23rd 1960. “Dated this “ (Signed) P. Gleason James *8 Judge”
Special 13, 1960, On appellant December motion filed his trial, which, omitting parts for a new and formal signature, reads as follows: NEW TRIAL
“MOTION FOR Respondent “The in the entitled cause above moves for each a new trial herein on following grounds: of the “1. proceedings Error in the the trial by prevented Respondent which having trial, a fair to-wit: Overruling “a. Respondent’s Motion to Quash. “2. finding That and decision to law.” the trial contrary
court is The motion for new trial overruled the court January 13, Thereafter, 1961. filed his Praecipe Transcript 29, 1961, and on March filed assignment which, omitting of errors formal parts signature, and reads as follows: Appellant “The avers that there is manifest error proceedings in this
cause, prejudicial Appellant, .this: overruling “1. The court Appellant’s erred in
Motion for a Trial. New “2. overruling Appellant’s erred in Quash.” Motion asserts, agree, Appellee only ques- and we two presented by appeal. tions are
(a) original Was rendered against null trial and, void,
:(b) jurisdic- Did the Court have LaPorte appellee’s petition for a tion writ entertain corpus? *9 arriving ques- the first In at a determination of tion, necessary we examine the it verdicts, pertinent in rendered on the such Linly defendant, part “. . Carl [Lind- reads: . ley] Todd, hereby, Indiana sentenced to be and is years crime period for the of ten State Prison for a ordered, banditry; . . it is further automobile Todd, Linly [Lindley] defendant, Carl hereby, be, and is sentenced the crime of years 10 not than the Indiana State Prison for less years....” nor 25 more than punishment robbery crime of is defined
The 447, 148, §6, p. 1941, ch. prescribed therefor Acts pro- being §10-4101, Replacement, Burns’ imprisoned “. part: in . . on conviction shall be vides less than ten [10] years nor more than twenty- years....” five [25] banditry defined and
The was crime automobile prescribed the time sen- punishment therefor at 54, 1929, imposed appellee Acts ch. was tence being §10-4710, Replacement. 136, Burns’ 1956 §3, p. upon provided part follows: “. . . conviction It prison thereof, imprisoned in state shall be determinate period less than ten [10] years nor more than twenty-five [25] years.” [Emphasis supplied.] argued, successfully, Petition appellee Corpus imposed for the
for Habeas sentence robbery the reason void for was crime in the crime of included offense a lesser same was served he had banditry and that since automobile 1933, provisions of Acts required under the the time being 257, 85, §1, p. p. 858, ch. 164, §1, ch. providing for the Replacement, §13-116, Burns’ therefore, sentences, was, entitled diminution of his release. charge robbery set is clear that out charge
count one of the indictment the identical thereof, robbery two with the count ad- set out charge allegations bringing within the ditional banditry automobile statute. guilty found
Before could have been banditry, incumbent automobile attempted prove State to committed or first charged one of the commit in count *10 indictment, addition, proved and in to have time, premises, appellee had at on near the an or automobile, etc., by escaped, at of the use (1952), tempted escape. or intended State v. Steffler 729; 557, 568, 230 104 et Ind. N. E. 2d Mims al. v. (1957), 439, 140 State 236 Ind. N. E. 2d 878. by appellant bar that
It is contended case at of lesser and of- crime is a included banditry in of fense the crime automobile because penalty provided ques- of the each crime. That been tion heretofore determined has adversely case of Beck v. 210, 213, 695, (1958), 238 149 2d Ind. N. E. where it is said: offense, an “To included all elements be great-
the er offense be contained lesser must greater containing ele- offense —the certain not contained in lesser.” ments charge banditry
In at bar the automobile the case robbery, and of the contained all elements con- not contained the rob- elements tained additional bring purview it bery within the auto- count to banditry statute. mobile
244 consideration, question
The-next jurisdiction Superior of the LaPorte Court to enter- petition tain appellee’s corpus. a for writ of habeas ..Appellant challenges jurisdiction of the LaPorte theory Court in the case bar at on (Spec. Sess.), being 38, §790, .240, Acts 1881 p. ch. §3-1918, Replacement, Burns’ in bar of those proceedings. reads, pertinent part of the statute (cid:127) judge “No inquire or le- shall into the gality. any judgment process whereby party discharge custody, is in him when expired,
term of has not either commitment following: cases the. Upon- any process “Second. final issued judgment, competent jurisdic- of a tion. In the case of Witte 630, N. E. 2d was held the second quoted
section of the above could statute con- be stitutionally prohibit inquiry construed to into jurisdiction rendering of the court as determined the intrinsic record that court. jurisdiction, That in a co-ordinate corpus proceeding, power jurisdiction had the go inquire behind the commitment and into the in- *11 committing trinsic record of the to ascertain court only general jurisdic- whether such had not court jurisdiction party, tion and also to ascer- but committing jurisdiction tain whether court had judgment particular to enter the which it did enter. (cid:127)Appellant’s contention is the Witte correct case, swpra, abrogate did not rule that corpus irregularities will lie to not correct or errors jurisdiction. of another court co-ordinate irregularities only It is when are the errors such proper the record court trial shows that jurisdiction parti enter the did have judgment enter, corpus cular which it did does habeas (See lie. 8—Witte footnotes 7 and 494, 495.) 230 Ind. against judgment
When trial rendered- sentencing appellee, imprisonment for him a term of years banditry, for ten for automobile and also sen- tenced him term of not less than no ten- and twenty-five years more than for the offense included- . the-judgment beyond power jurisdiction render, ex- -was cessive and void as excess. suggested remedy concluding para
graphs majority opinion now available for the reason the term-of court at which rendered has terminated. remedy Even if such still existed ..need not avail of it himself the case at bar. the s complained of is void and not erroneou jurisdiction, The LaPorte Court had to ..en- ‘ grant appellee’s petition tertain and a' for Writ Judgment Corpus Habeas of the court should be affirmed. Reported in N. 184 E. 2d 4.
Note. —
Shipman v. State of Indiana. 29,956. 26, 1962. Rehearing Filed June denied [No. September 24, 1962.]