138 P. 849 | Or. | 1914
delivered the opinion of the court.
“Whenever any person is convicted of a crime for which the maximum punishment is a definite term of years in the penitentiary the court shall, unless it impose other sentence than a sentence to serve a term in the penitentiary, sentence such' person to imprisonment in the penitentiary without limitation of time, stating in such judgment and sentence the minimum and maximum penitentiary penalty for such crime, as provided by law, which said sentence shall be known as an indeterminate sentence. * * ”
The contention of the petitioner is that the Circuit Court had no authority or power to impose upon the defendant in the criminal action the indeterminate sentence, and hence that his detention is utterly unlawful, entitling him to immediate liberation by habeas corpus. It is said in Section 628, L. O. L., that “persons imprisoned or restrained by virtue of the judgment or decree of a competent tribunal of civil or criminal jurisdiction, or by virtue of an execution issued upon such judgment or decree,” shall not be allowed to prosecute the writ.
Again, it is stated in Section 641, L. O. L.:
“It shall be the duty pf the court or judge forthwith to remand such party if it shall appear that he is legally detained in custody, * * by virtue of the judgment or decree of any competent court of civil or criminal jurisdiction, or of any execution issued upon such judgment or decree; * * and, that the time during which such party may be legally detained has not expired.”
Section 643, L. O. L., reads thus:
“But no court or judge, on the return of a writ of habeas corpus, has power to inquire into the legality or justice of any order, judgment, or process specified in section 628. * * ”
‘ ‘ If the process is valid on its face, it will he deemed prima facie, and the prisoner must assume the burden of impeaching its validity by showing a want of jurisdiction. Error, irregularity or want of form is no objection; nor is any defect which may be amended or remedied by the court from which it issues. If there was no legal power to render the judgment or decree, or issue the process, there was no competent court, and consequently no judgment or process. All is coram non judice and void.”
The following cases cited in the brief of the petitioner are distinguishable from the one in hand. In the case of In re Nielsen, 131 U. S. 176 (33 L. Ed. 118, 9 Sup. Ct. Rep. 672), the defendant had been sentenced, for a crime included in another crime for which he had been already convicted and had suffered the penalty. He was released on the ground that no man could be punished twice for the same offense. In Ex parte Tice, 32 Or. 179 (49 Pac. 1038), the Circuit Court was attempting to hold the defendant after he had been once in jeopardy upon the accusation under which he was detained. For this reason he was discharged, because the court has no jurisdiction in such cases.
At most, this is a mere clerical error which during the term of court at which judgment was rendered could have been corrected, on motion of either the state or the defendant, or could have been remedied on appeal. The authorities are unanimous that the writ of habeas corpus cannot be used as a writ of error or instead of an appeal. The conclusion is plain that the writ does not lie in this case.
The judgment of the Circuit Court is affirmed, and the prisoner is remanded tQ the custody of the superintendent of the penitentiary. Writ Dismissed.