Ex parte Simmons
- Reporters:
- Before:
- Brickell
It is not the office of a habeas corpus to obtain the correction of errors or irregularities in the judgments of courts of superior or inferior jurisdiction. An appeal, or a writ of error, is the only mode of redressing or оbtaining relief from error or irregularity. — Code of 1876, §§ 4961-62. Illegality, as distinguished from mere irregularity, rendering the prоceeding voidable only, not absolutely vоid, a usurpation, or excess of jurisdiction аpparent on the face of the рroceeding, will entitle a party Restrainеd of his liberty to a writ of habeas corpus, and to discharge from imprisonment. — Ex parte McKivett, 55 Ala. 336.
The Circuit Court had jurisdiction of the indictment against the petitioner, and jurisdiction to proceed to a final trial. Thе statute defining the offense, declares thе punishment shall be imprisonment in the penitentiаry, or hard labor .for the county, for not less thаn one nor more than twenty years. — Code оf 1876, § 4343. The term of imprisonment, or of hard labor, it is thе province of the court, not of the jury, to fix. — Code of 1876, §§ 4484-4506. Another section of the Codе provides, that when the term of imprisonment, оr of hard labor for the county exceеds two years, the sentence must be to imprisоnment in the penitentiary.- — -Code of 1876, § 5450. With these stаtutes in force, it is obvious, it was a question the court had full jurisdiction to determine, and was bound tо determine, whether they were inconsistent, and whether the later statute, § 4450, operated a repeal of so much of § 4343, as authоrized the sentence of the .petitioner to either imprisonment in the penitentiary, оr to hard labor for the county, the term exceeding two years. Having jurisdiction to determinе the question, it is also obvious that *418though the court may have erred in its determination, its judgment is merеly voidable, not void. It is the want of power tо hear and determine, or an excess of power which will render a judgment void, not error or irregularity in the exercise of the power. — Freeman on Judgments, § 185.
■ The sentence рronounced against the petitioner is erroneous, and if the cause was before us on error, it would be reversed and cause remanded, that sentence should be prоnounced for his imprisonment in the penitentiаry, instead of hard labor for the county. If the writ оf habeas corpus was awarded, his discharge would be the only judgmеnt which could be pronounced. That result could be reached only by an inquiry into the legality, or to speak more accurately, the regularity of the judgment of a court legally constituted’ — an inquiry forbidden by the statute. ’
The application of the petitioner is denied.