298 F. 784 | D.S.D. | 1924
(after stating the facts as above). 1. As a postulate to the consideration of this case, it should be noted that in a habeas corpus proceeding, as here, the whole inquiry is limited to an examination of fundamental and jurisdictional questions, as the habeas corpus writ cannot be employed as a substitute for a writ of error. Ex parte Parks, 93 U. S. 18, 23 L. Ed. 787; Harlan v. McGourin, 218 U. S. 442, loc. cit. 448, 31 Sup. Ct. 44 , 54 L. Ed. 1101, 21 Ann. Cas. 849; Collins v. Johnston, 237 U. S. 502, loc. cit. 505, 35 Sup. Ct. 649, 59 L. Ed. 1071; Bens v. U. S. (C. C. A.) 266 Fed. 152; Murray v. U. S. (C. C. A.) 273 Fed. 522; Collins v. Morgan, 243 Fed. 495, 156 C. C. A. 193; Biddle v. Luvisch (C. C. A.) 287 Fed. 699; Ex parte Salinger (C. C. A.) 288 Fed. 752, loc. cit. 754; Ex parte Joly (D. C.) 290 Fed. 858.
While upon habeas corpus the inquiry only extends to the power and authority of the court to act, not the correctness of its conclusions, yet in ascertaining a jurisdictional fact, and whether the judgment is wholly void, the court will pursue its inquiry through the record of the proceedings. It was said in Moore v. Dempsey, 261 U. S. 86, loc. cit. 92, 43 Sup. Ct. 265, 267 (67 L. Ed. 543):
“It does not seem to ns sufficient to allow a judge of the United States to escape the duty of examining the facts for himself, when, if true as alleged, they make the trial absolutely void.”
2. By section 4725 of the Revised Code of 1919 of South Dakota it is provided that:
An “information is sufficient if it can be understood therefrom: * * *
“4. That the offense charged was committed within the jurisdiction of the court, or, though without the jurisdiction of the court, K' triable therein.”
Obviously the information being considered does not meet the test of sufficiency prescribed by this statute. It cannot be sustained upon the most favorable inferences. It charges in substance that the Firemen’s Insurance Company, a corporation of Newark, N. J., was empowered to do business in the state of South Dakota, and in pursuance of its authority insured certain property of the petitioner, located in Minnehaha county; that the property was destroyed by fire, and that thereafter petitioner presented a false claim to its agents. It is not alleged where petitioner presented the false and fraudulent claim _and proofs in support thereof.
A reasonable inference would be that such claim and proofs were presented to the company at Newark, N. J. This would be the more reasonable inference, absent an allegation that the agents of the company were located in South Dakota, and moreover, even with such an allegation as to the residence of the agents, under this statute, the information should have- charged that the presentation of the false and fraudulent claim and proofs in support thereof were made somewhere within the jurisdiction of the court, or an allegation, as provided by the statute, “though without the jurisdiction of the court, is triable therein.” Though by section 4715, South Dakota Revised Code of 1919, all technical forms of pleading in criminal actions have been abolished, yet the lawmakers plainly and unequivocally provided that an information, to be sufficient, must yield the inference that the offense was committed within the jurisdiction of the court. This is the
Apart from the jurisdictional question, the place of the alleged offense should be charged with such clearness and certainty as to afford full notice of the charge, and thereby enable the accused to make his defense with reasonable knowledge, and to plead the judgment rendered upon the information in bar of any second charge for the same offense. It is a. general principle of the law that the place must be alleged with such certainty that it may b? seen that tfie court has jurisdiction of the offense. This is the rule reinforced by section 4725 of the South Dakota laws. It follows from the foregoing that the information, challenged in the state court and here, stands condemned by statute and is insufficient. Being insufficient, it cannot sustain a judgment, and all proceedings tending thereto are void.
3. It is the contention of the learned Attorney General, who appears for the respondent, that, even if the information did not contain proper jurisdictional averments, yet all questions thereon were foreclosed against the petitioner by his failure to file a formal demurrer. The court cannot so hold. It is provided by section 4/71, South Dakota Revised Code of 1919, that the defendant may demur to an information when it appears upon the face thereof, among other things, “that the court is without jurisdiction of the offense charged.” By section 4779, South Dakota Revised Code of 1919, it is provided that objections, under said section 4771, can only' be taken by demurrer “except that the objection to the jurisdiction of the court over the subject of the indictment or information or that it does not describe a public offense, may be taken at the trial under the plea of 'not guilty’ and in arrest of judgment.”
From the above, it is very evident that the lawmakers had in mind the fundamental proposition that jurisdiction cannot be conferred by consent, agreement, or waiver, and that therefore a challenge to the jurisdiction of the court could be made at any stage of the proceeding and in any manner. An examination of the proceedings in this case, however, discloses that the inferences of the respondent are not justified, nor are the conclusions of the Supreme Court-in this regard sustained. At the very threshold of the trial petitioner requested permission to withdraw his plea of not guilty, for the purpose of filing a formal demurrer. This request having been denied him, he thereupon interposed his challenge to the jurisdiction of the court, and thereafter urgetl his contention with vigor and persistency at’every stage of the proceeding. It does not appear upon the record that petitioner, by his conduct at the trial, waived even his personal rights, or that he was estopped from asserting them, either in the state courts or here.
4. In view of the above, it is not necessary to notice the contention made in this court that the statute under which petitioner was convicted had been repealed by what is known as the valued policy law (Rev. Code-1919, § 9201). In passing, however, and in view of the analysis of the two provisions made by counsel, it should be observed that the valued policy law is conclusive only as to the amount written in the policy where the property is wholly destroyed “without criminal fault on the part of the insured.”
5. It is finally contended by the respondent that this court should not interfere by habeas corpus, but that the petitioner should pursue his remedy by writ of error to the Supreme Court of the United States. This contention would be correct if the state court had jurisdiction of the cause, and merely abused the processes of the court, and committed irregularities; but where, as here, the state court was'without jurisdiction to proceed in the premises, its judgment was void, and, being a nullity, it was subject at any time to collateral attack. The federal courts are clothed by statute with power to issue writs of habeas corpus “for the purpose of any inquiry into the cause of restraint of liberty,” and “shall proceed in a summary way to determine the facts in the case by weighing the testimony and arguments and thereupon to dispose of the party as law and justice require.”
It is idle to say that petitioner should be required to seek a review of the proceeding in the state court by writ of error upon a record that obviously could not sustain a judgment of conviction. Moreover, in pursuing its inquiry, the court is warranted in examining all matters that go to the authority of the court to try and sentence the accused. Harlan v. McGourin, 218 U. S. 442, 31 Sup. 44, 54 L. Ed. 1101, 21 Ann. Gas. 849; Moore v. Dempsey, supra. In Ex parte Van Moore (D. C.) 221 Fed. 968, and in Yohyowan v. Luce (D. C.) 291 Fed. 425, the federal court interfered by writ of habeas corpus upon the theory that the state court was wholly without jurisdiction. It is true that those cases were cognizable only in the federal court, but the proceeding as here was hased upon the lack of jurisdiction of the state court.
In Castle v. Lewis, 254 Fed. 917, loc. cit. 919 and 920, 166 C. C. A. 279, 281, Judge Sanborn, in a learned and exhaustive opinion, said, among other things:
“When a person is in custody under the process of a state court for an alleged offense against the laws of such state, and it is claimed (a) that he is in custody in violation of the Constitution, or of a law or treaty of the United States, or (b) for an act done or omitted to be done by him in pursuance of a law of the United States, the District Courts of the United States and the judges thereof have plenary jurisdiction to inquire into the cause of such confinement by means of the writ of habeas corpus, and to discharge the petitioner if his detention is in violation of the Constitution or ■of a law or treaty of the United States. * * * ”
In conclusion, it should be stated that it was the right and duty of this court to make inquiry into the question of proof of venue in the trial of petitioner, and this was done.
In view of the premises, it is the order of the court that the petitioner be discharged from the custody of the sheriff of Minnehaha county, S. D., and that his bond heretofore taken, pending this proceeding, be exonerated, and the sureties discharged.