45 So. 1
Miss.
1907

Lead Opinion

Wiiiteield, C. J.,

delivered the opinion of the court.

The verdict in this case was in the following words: “We, the jury, find the defendant guilty of assault and battery with intent to commit manslaughter.” Under the case of Traube v. State, 56 Miss., 153, this has been determined to be a mere conviction of assault and battery; the words “with, intent to commit manslaughter” being mere surplusage. We have, therefore, a conviction of a misdemeanor. The learned circuit court, misinterpreting this verdict, held it to bo a conviction for a felony, and sentenced the defendant to six years in the penitentiary. This sentence it had no power nor jurisdiction to impose. The distinction, abundantly established by authority, is between a sentence which is merely excessive or erroneous, regard being had to the particular offense, and a sentence which is absolutely void. In the former case the writ of habeas corpus cannot be availed of, but the party must appeal; else the writ of habeas corpus would be made to serve the office intended exclusively for an appeal. This last point, and this alone, is what was held in the case of Ex parte Grubbs, 79 Miss., 358, 30 South., 708. That was no case of excessive sentence for any offense; The sole com*25plaint by Grubbs, on habeas corpus, was that the affidavits on which he had been convicted were defective. Of course, the writ of habeas corpus could not be resorted to to try that question. It is no authority whatever on the point in issue hei*e. The true doctrine is laid down explicitly in 21 Cye., at page .296, where is is said: “Want of jurisdiction over person or subject-matter is always a ground for relief on habeas corpus, for, if the court has acted without jurisdiction, its judgment or order is absolutely void even on collateral attach; and at least according ho the doctrine of the latter cases, in addition to jurisdiction over person and subject-matter, the court must have had jurisdiction to render the particular judgment” — citing* innumerable authorities from all over the Union, including Scott v. State, 70 Miss., 247, 11 South., 657, 35 Am. St. Rep., 649, which is directly in point and decisive here. At page 298 of the same authority is laid down the universal doctrine that “mere errors and irregularities which do not render the proceeding void are not ground for relief by habeas corpus. In such case, if the judgment is one from which appeal lies, the remedy is by appeal.” The rule is thus clearly laid down in 21 0jo., at page 294: “But from this it does not follow that the only question which can be inquired into is the jurisdiction of the court over person and subject-matter; but, in addition, the court must, at least according to< the later cases, have had jurisdiction to render the particular judgment, without which its judgment is void and the prisoner entitled to be discharged” —citing numerous authorities. Notice that it is expressly said this is the holding of the latest cases. Again, the rule is thus expressed in 15 Am. & Eng. Ency. of Law (2d ed.) p. 270, that: “Even where a court has jurisdiction of the offense charged and of the peráom of the accused, it may so far transcend its powers in assessing the penalty for the offense, by imposing a punishment of a character different from that prescribed by law, or otherwise, that the sentence will be void and furnish no authority for holding the accused in custody, though the conviction on *26which the sentence was entered was valid and correct; and in such a ease the accused may be discharged on habeas corpus. But it is only when the court pronounces a judgment which is. not authorized by law under any circumstances in the particular case made by the pleadings, whether the trial has proceeded regularly or otherwise, that such judgment can be said to be-void, so as to justify the discharge of the defendant held in custody by it, and a judgment is not considered void, according to what seems to- be the preponderance of authority, merely because it is excessive, if it is of the kind or character authorized by law, though it has .been said that an excessive judgment is one that the court did not have the power to render, and is therefore void. The discharge, however, in case a void sentence has been entered on a valid conviction, should he without prejudice to the right of the prosecution to have the prisoner sentenced according to law, unless, the case is such that the prisoner cannot be remanded for resentence. ”

■ In the case of a judgment or sentence which is merely excessive, it seems to he well settled that, “if the court was one of general jurisdiction, such judgment or sentence is not void ab initio because of the excess, hut it is good so far as the power of the court extends; and is invalid only as to the excess, and therefore a person in custody under such a sentence cannot he discharged on habeas corpus until he has suffered or performed so much of it as it was within the power of the court to impose. This condition exists whenever the punishment imposed is of the nature or kind prescribed by law and merely exceeds the quantity authorized, as where the offender is sentenced to a longer term of imprisonment than is prescribed for the particular offense,” etc. It will he especially noted that both Cyc. and Am. & Eng. Ency. of Law declare it to be the modem rule, according to the latest and best-considered cases, that, although the court may have jurisdiction over the subject-matter and over the person, it is without jurisdiction to impose a sentence not appropriate to the kind and nature of the offense. The-*27language used in the Eney. is: “This condition exists [i. e.r habeas corpus cannot be resorted to] whenever the punishment is of the nature or kind prescribed by law and merely exceeds, the quantity authorized.” And again the same authority says, on page 170, that, “even whei'e 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 offense by imposing a punishment of a character different from that prescribed by law, or otherwise, that the sentence will be void and furnish no authority for holding the accused in custody, though the conviction on which the sentence was entered was valid and correct; and in such a case the-accused may be discharged on habeas corpusAgain, in the latter part of the same section, it says: “The court, to have power to render the particular judgment, must impose a punishment of the kind or character authorized by law.” This is the true test, the correct distinction. The same doctrine is declared in Windsor v. McVeigh, 93 U. S., 274, 23 L. Ed., 914, and Ex parte Lange,. 18 Wall. (U. S.) 163, 21 L. Ed., 872, both of which are approved in McHenry v. State, 91 Miss., 562, 44 South., 831.

We refer to but two other cases. In the case of In re Fanton',. 55 Neb., 703, 76 N. W., 447, 70 Am. St. Bep., 422, it is said:: “If, upon a conviction for burglary, the court should sentence the accused to be hung, the judgment would be void for want of jurisdiction of the court to impose a sentence of that kind in that case. But it would be otherwise if the court should adjudge an imprisonment in the penitentiary for a longer period than fixed by the statute for the crime of'burglary. In the latter case the sentence would be erroneous merely, but not void. In the one case the court had no jurisdiction to impose that particular kind of a sentence upon conviction of burglary,, while in the other the statutory kind of punishment was meted out, although the time of imprisonment exceeded the statutory-bounds. A sentence of a different character than that authorized by law to be imposed for the crime of which the accused *28lias been found guilty is void, while a sentence which imposes the statutory kind of punishment is not absolutely 'void, although excessive. In the former case the entire judgment is invalid, while as to the latter the excessive portion is alone erroneous, and not void in such a -sense as to be available on habeas corpus, at least until after the valid portion of the judgment has been executed.” This is a very precise statement of the true distinction. In- the last case we cite, In re Bonner, 1-51 IT. S., 242, 14 Sup. Ct., 323, 38 L. Ed., 149, the great judge, Mr. Justice Eield, speaking for the court in a case where the defendant was convicted of a crime for which he could not be imprisoned in the penitentiary at all, jnst as here, after a very able discussion of the whole snbject-matter says: “The prisoner is ordered to be confined in the penitentiary, where the law does not allow the court to send him for a single hour. To deny the right of habeas corpus in such a case is a virtual suspension of it; and it should be constantly borne in mind that the writ was intended as a protection of the citizen from encroachment upon his liberty from any source, equally as well from the unauthorized acts of courts and judges as the unauthorized acts of individuals”' — and the prisoner was discharged ■on the writ of habeas corpus, but held to answer further according to law; that is, to appear before the lower court to receive proper sentence. These statements of this elementary principle are clear and accurate, and no other authorities- than those referred to in the text are necessary. "Wherever the sentence pronounced by the circuit judge is merely excessive, or erroneous, or irregular, the writ of habeas corpus has no place, but the defendant must appeal; but wherever, the sentence imposed by the circuit judge for the particular offense of which the defendant has been found guilty by the jury is void for want of "power to pronounce that particular sentence; such sentence is absolutely void, and the defendant may resort to the writ of habeas corpus to release him from confinement in pursuance of such illegal sentence.

*29Here we have the case of a man. convicted of a misdemeanor and under sentence as for a felony. Most manifestly the sentence is void absolutely, as one which the court was without power under the law to pronounce at all. It is not correct to say that, if the circuit court interpreted this verdict to be a verdict of guilty of a felony, it was under the duty to sentence as for a felony. Whether the defendant was convicted of a misdemeanor or a felony as a matter of fact is the test as to the sentence to be imposed ; not what interpretation, right or wrong, the circuit court may have put on the verdict. The question is, what was the defendant convicted-of by this verdict? and the answer is plain, “Of simple assault and battery,” and that is a mere misdemeanor. ' How, then, could the circuit court impose the penalty of six years’ imprisonment in the penitentiary on a defendant convicted of mere assault and battery? It is manifest that his judgment was absolutely void. The argument that hateas corpus does not lie to correct a merely excessive sentence is sound enough; but the sentence must always be one proper for a misdemeanor where the conviction is-of a misdemeanor, and one proper for' felony where the conviction is of a felony, else we would introduce interminable confusion into the law. If in this case, for example, the circuit court, treating this judgment, as it should have been treated, as a conviction of simple assault and battery, had imposed an excessive sentence as for a misdemeanor, we would have had the case of a merely excessive or irregular or erroneous sentence ; but, when the court undertook to inipose upon the defendant a felony sentence for a conviction for misdemeanor, it becomes perfectly clear that it imposed a sentence which it was without power or jurisdiction to impose. The one would have been a mere irregular exercise of power; the other the exercise of a power the court was wholly without, since in no possible-case could it have imposed a felony sentence for a mere misdemeanor.

One other observation is due to be made, however, in this *30case, and that is that, since this verdict is not a nullity, but was a good verdict for assault and battery, the relator should not be discharged, but should be remanded to the circuit court for proper sentence as for assault and battery. See 21 Cyc., 306, par. 15, where it is said, citing authorities:: “The court may also have jurisdiction to commit a party on one ground, •but not on another, and may nevertheless commit him on both grounds; and in such case the prisoner ought not'to be discharged so long as he is properly imprisoned under the valid ■portion of the commitment.”

The decree is affirmed.





Dissenting Opinion

Mayes, J.,

delivered the following dissenting opinion:

I cannot agree to the conclusion reached by the majority, opinion in this case. The practical effect of the decision is to convert 'the writ of habeas corpus into a writ of error, and to establish as many courts of review as there are judges who may issue the writ of habeas corpus — a result that it was never intended ■that the writ of habeas corpus should accomplish. The concrete case here is this: Burden was indicted in the circuit court of Hinds county under Code 1906, § 1013. That section of' the Code is as follows: “Every person who •shall be convicted of shooting at another, or of attempting to discharge any firearms or airguns at another, willfully, or of any assault or assault and battery upon another with any deadly weapon or 'other means of force likely to produce death, with 'intent to kill and murder, or to maim, ravish or rob such other person, or in the attempt to commit any murder, rape, manslaughter, burglary, larceny, or other felony, or in resisting the execution of any legal process, or of any officer or private person lawfully attempting to arrest him or any other person, .. . . shall be imprisoned in the penitentiary not more than ten years, or shall be punished by a fine of not moi,e than one thousand dollars, or by imprisonment in the county jail mot more than one year, or both.” • The indictment charged *31■that Chester Burden “did then and there -willfully, unlawfully, feloniously, and of his malice aforethought make an' assault upon the person of one W. L. Owen with a certain deadly weapon, to-wit, a pistol, with intent and in the attempt, etc., to kill and murder,” etc. It will be noted that the indictment •charges that Burden made an assault, etc., both with intent and in the attempt to commit murder. This indictment was challenged in no way, and under it Burden was- placed upon trial. After hearing the case, the jury returned the following verdict: '“We, the jury, find the ^defendant guilty of assault with intent to commit manslaughter.” Whereupon the defendant was sentenced to the penitentiary for six years. The punishment provided in. the statute for an assault, etc., with intent to commit murder, ns anslaughter, etc., is the same.

Without undertaking to say in this ease whether the sentence of the circuit court was correct or not, I do say.that, being a ■court of general jurisdiction and having full jurisdiction both of the offense charged and of the person, the sentence is not void aib initio, and therefore, if reviewed, it must be by appeal, and not on a collateral attack under the writ of habeas corpus. If it be conceded that the verdict of the jury, under the case of Traube v. State, 56 Miss., 153, only convicted defendant of an assault and battery, the most that can be said is that the court has imposed a sentence in excess of what it had a right ■to do under the law, and this is mere error. In volume 15, p. 171 (2d ed.) Am. & Eng. Encyc. of Law, the following rule is laid down: “In the case of a judgment or sentence which is merely excessive, it seems to be well settled that, if the court was one of general jurisdiction, such judgment or sentence is not void aib initio because of the excess.” Again, on the same page, it is said that “whenever the punishment imposed is of the nature or kind prescribed by law, and merely exceeds the quantity authorized, as where the offender is sentenced to a longer term of imprisonment than is prescribed for the particular offense, or where he is condemned to pay a fine and be imprisoned for an *32offense which is punishable by a fine or imprisonment, or where the sentence is severable, and a part of it is of the nature prescribed by law and the other paid is not, as where an offender is sentenced to imprisonment in the penitentiary and to pay a fine, when the punishment authorized by law for the particular offense is a fine and imprisonment in the county jail,” in all such cases the action of the court can be reviewed only on appeal. In Sennot's case, 146 Mass., 489, 16 N. E., 448, 4 Am. St. Rep., 344, citing many cases, it is said: “A writ of habeas corpus cannot perform the functions of a writ of error in relation to proceedings of a court within its jurisdiction. "Where a court has jurisdiction of a person and of the offense, the imposition by mistake of a sentence in excess of what the law permits is within the jurisdiction, and does not render the sentence void, but only voidable by proceeding upon writ of error.” In re Eckart, 166 U. S., 481, 17 Sup. Ct., 638, 41 L. Ed., 1085; In re Fanton, 55 Neb., 703, 76 N. "W., 447, 70 Am. St. Rep., 418; Scott v. State, 70 Miss., 247, 11 South., 657, 35 Am. St. Rep., 649; Ex parte Grubbs, 79 Miss., 358, 30 South., 708.

In this case the jury returned a doubtful verdict. This verdict and its interpretation called for the court’s construction, and the court gave its interpretation of the verdict, and held that it convicted defendant of one of the offenses charged in the indictment, and imposed a sentence of the nature and kind prescribed by law for the offense of which the court held that defendant was convicted. If this was wrong, it was mere error, and, like all others, is reviewable only on appeal. The majority opinion proceeds upon the idea that there was a-clear want of authority in the circuit court to impose this sentence, and proceeds to prove this by declaring that under the verdict defendant was only convicted of assault and battery. This may be true; but the circuit court did not so construe the verdict under the statute. If defendant had only been charged with assault and battery, and the jury had only convicted him *33of assault and battery, and the court had sentenced him to the penitentiary, I am of opinion that habeas corpus would lie, because in that case there would be a clear lack of jurisdiction to render that kind of a sentence. It would be punishment of a different nature and kind from that allowable by law, and which the court had no jurisdiction to render in the particular case. But that is not this case. In the case of Fanton v. State, 55 Neb., 703, 76 N. W., 447, 70 Am. St. Rep., 422, referred to by the majority opinion, I fail to see any analogy to this. Of course, if the party charged with burglary were sentenced to be hung, a writ of habeas corpus would lie, because, there was no jurisdiction acquired by the court to render such a judgment. Being without jurisdiction, it is void. It is not of the nature and kind authorized by law. That case is not similar to this case. The majority opinion entirely overlooks the fact that the court was called upen to construe a yerdiet of the jury not clear in itself, and in doing so has held that defendant is convicted of a charge embraced in the indictment, and thereupon proceeds to render a sentence of a nature and kind authorized by law on a conviction of the offense that the court holds that the jury’s verdict convicted defendant of. The indictment charged a felony, the corirt held that the verdict of the jury convicted of a felony, the court had the power to sentence for a felony, and the punishment imposed by the court according to his interpretation of the verdict. I maintain that in any case where it is a matter of doubt as to what is the meaning of the verdict of the jury, and a court of general jurisdiction is called upon to construe it, and in construing the verdict commits error, but imposes only such sentence as would be appropriate under the offense charged and under the construction of the verdict given by the court, then the remedy is by appeal, and riot by habeas corpus. One charged with murder and convicted of manslaughter by a verdict that was clear could not be sentenced for murder, and, if he was, might be released by writ of habeas corpus. There would be no room *34for construction here, and a sentence imposed for murder would be void. i

The case of In re Bonner, 151 U. S., 242, 14 Sup. Ct., 323, 38 L. Ed., 149, in my judgment has no application here. That was a ease where the party was sentenced in violation of the express provisions of the United States statutes, and, of course, there was no jurisdiction to render the judgment. The later case of In re Eckart, 166 U. S., 481, 17 Sup. Ct., 638, 41 L. Ed., 1045, is a clear exposition of the subject, and gives the correct law. 1 Bishop’s Crim. Pro., § 1410 et seq., and note; 21 Cyc., 306.