163 Ind. 457 | Ind. | 1904
The appellant James Gillespie, who was in the custody of the appellee Harry Rump, as the sheriff of Ohio county, in this State, and confined in the jail of that county, on June 4, 1904, filed in the office of the clerk of the Ohio Circuit Court his verified petition for a writ of habeas corpus.
The petition stated that the appellant was unlawfully restrained of his liberty by the appellee at the jail of said Ohio county; that the pretense for such restraint was that on December 22, 1903, the grand jury of said Ohio county returned to the circuit court of that county, at its December term, 1903, an indictment against the petitioner and against Belle Seward, Carrie Barbour and Myron Barbour, charging them with murder in the first degree, in that they, on the 8th day of December, 1903, with intent to kill and murder one Elizabeth Gillespie, did feloniously, purposely, and with premeditated malice, shoot at and against said Elizabeth Gillespie with a deadly weapon called a shotgun, then and there loaded with gunpowder and leaden balls, and did then and there purposely, feloniously, and with premeditated malice, mortally wound the said Elizabeth Gillespie, of which mortal wound the said Elizabeth Gillespie, on the 10th day of December, 1903, died; that the petitioner was arrested on said charge, and had since been, and then was, confined in said jail;, that the said-restraint was illegal in this: That on May 2, 1904, at the May term of the Ohio Circuit Court, the petitioner and his codefendants were arraigned in open court, and pleaded “not guilty” to said charge; that the said cause was called for trial, and, on May“l0, 1904, a jury of twelve competent jurors (naming them), not related to any of said defendants, being in the jury-box, were duly and legally impaneled, charged, and sworn to try gaid cause, and a true yerdict render according to the law
The writ was issued and served, and the respondent moved to quash the same for the reasons that the petition did not state facts sufficient to entitle the petitioner to the writ, that the court had jurisdiction of the person of the defendant and of the subject-matter of the action, and that its acts could not be questioned collaterally, and that the rulings of the Ohio Circuit Court could not be reviewed in this proceeding. The objections to the petition were sustained, and the prisoner was remanded to the custody of the sheriff.
That statute provides that “Ho court or judge shall inquire into the legality of any judgment or process whereby the party is in custody, or discharge him when the term of commitment has not expired, in either of the cases following: *, * * Eourth. Upon a warrant issued from the circuit court upon an indictment or information.” §1133 Burns 1901, §1119 R. S. 1881 and Horner 1901. The only inquiry necessary or permissible in this case is, was the petitioner in custody upon such a warrant ?
The jurisdiction of the Ohio Circuit Court over the subject of the action and the person of the petitioner at the time he was brought into court to answer the indictment and a jury was first impaneled to try him and his codefendants upon it is not questioned: That indictment is still pending against the petitioner, and no final judgment has been rendered in the cause. If it should be conceded that the appellant is correct in his contention that he has been once in jeopardy upon the charge contained in the indictment, and that the setting aside of the submission after the jury had been sworn to try the cause, the discharge of one of the jurors upon a peremptory challenge by the State, and the impaneling of a second jury — all without his consent, and over his objections duly presented — was equivalent to an acquittal, still the facts of such jeopardy and
The fact that the act of the court in discharging a juror and impaneling a second jury, even if erroneous, did not, ipso facto, deprive it of jurisdiction in the cause, and render its subsequent proceedings void, and the further fact that for any supposed error of the court in the proceedings complained of the defendant had a complete and speedy remedy by appeal, conclusively settle this controversy against him. The writ of habeas corpus can not be used as a substitute for the writ of certiorari, the writ of error, or an appeal. In this State, in all cases where the pro
Upon the question which we consider and decide on this appeal, and to that extent only, Wright v. State (1854), 5 Ind. 290, 61 Am. Dec. 90, is directly in point. In that case the judge of the circuit court in which the defendant was on trial upon an indictment for murder, over the objection of the defendant, discharged the jury on the last day of the regular term of the court, before the trial was finished, and continued the case until the first day of the succeeding term. The defendant contended that the discharge of the jury was unnecessary, ancj. was equivalent to an acquittal. He sued out a writ of habeas corpus before the judge of the court of common pleas, and upon a hearing, in which the foregoing facts were shown, the judge remanded the petitioner to jail. An appeal was taken, and in deciding the case this court said: “The facts in this case show that the prisoner was in custody, awaiting his trial under an indictment for murder, and we are clearly of opinion that although the discharging of the jury by the circuit court was equivalent to a verdict of acquittal, yet as the case was not' finally disposed of, and as there was no release of the prisoner by any judgment of the court, he must be regarded as in custody under the indictment. Had there really been a verdict of acquittal rendered by the jury, without further action by the circuit courh the judge of the court of common pleas could not have discharged him. If he could, at this stage of the
An attempt is made by counsel for appellant to distinguish the case of the petitioner from Wright v. State (1854), 5 Ind. 290, 61 Am. Dec. 90, for the reason that immediately upon the setting aside of the submission of the cause to the jury and the dismissal of the juror who was challenged by the State, the petitioner moved for his discharge from custody, and that upon the overruling of this motion he filed a special plea setting1 up the facts supposed
The principle upon which Wright v. State (1854), 5 Inch 290, 61 Am. Dec. 90, was decided, was affirmed in Wright v. State (1855), 7 Ind. 324, where the court said: “While the case is still pending in the Johnson Circuit Court, we have no jurisdiction. 2 R. S. [1852] 195, 196. The prisoner is clearly entitled to his discharge; but the motion to that effect should be made in the court where the indictment is pending.”
In Wentworth v. Alexander (1879), 66 Ind. 39, the defendants were jointly indicted for murder in the second degree. The jury returned a verdict of “guilty as charged,” fixing their punishment at confinement in the State’s prison for two years. The trial court being of the opinion that the verdict was a nullity, after a statement by the defendants that they waived none of their rights, and had motions to make, discharged the jury. The defendants thereupon moved for their discharge, and their motion was overruled. The court then continued the case until the next term. A writ of habeas corpus was issued upon the petition of the defendants, and on the hearing they were remanded to the custody of the sheriff. On appeal to this court it was held that the defendants had been once in jeopardy, but that they were in custody by the order of a court of competent jurisdiction upon an indictment presented by a grand jury, and that the circuit court had no power to inquirfe by a writ of habeas corpus into the legality of the order under which they were committed.
McGuire v. Wallace (1887), 109 Ind. 284, was an appeal from an order upon habeas corpus remanding the
It was declared in Koepke v. Hill (1901), 157 Ind. 172, 176, a proceeding upon a writ of habeas corpus, that “In this State, * * * the holdings have been to the effect that, whenever a court is confronted with a question which it has a right to decide correctly, its erroneous judgment will not be subject to a collateral attack, irrespective of whether the mistake of law concerned the common, or statutory, or constitutional law.”
Winslow v. Green (1900), 155 Ind. 368, decides that “The law is firmly established that, jurisdiction being once obtained over the person and subject-matter, no error or irregularity in its exercise will make the judgment void.” See, also, Williams v. Hert (1901), 157 Ind. 211, 87 Am. St. 203; Pritchett v. Cox (1900), 154 Ind. 108; Turner v. Conkey (1902), 132 Ind. 248, 17 L. R. A. 509, 32 Am. St. 251; Kinningham v. Dickey (1890), 125 Ind. 180; McLaughlin v. Etchison (1891), 127 Ind. 474, 22 Am. St. 658; Lee v. McClelland (1901), 157 Ind. 84; Cruthers v. Bray (1903), 159 Ind. 685; Willis v. Bayles (1886), 105 Ind. 363; Lowery v. Howard (1885), 103 Ind. 440; Farmer v. Lewis (1884), 92 Ind. 444, 47 Am. Rep. 153. 17 Am. and Eng. Ency. Law (2d ed.), 1072, has an exhaustive- collection of English and American cases, which see.
The decision in Maden v. Emmons (1882), 83 Ind. 331, sustains the views expressed by counsel for appellant'. That case, however, seems to have been decided without regard to the principles asserted and maintained in the numerous opinions cited herein, and without any notice
It is to be observed that the same section of article forty, concerning the writ of habeas corpus (§1133 Burns 1901, §1119 R. S. 1881 and Horner 1901), which denies to any court or judge the power to inquire into the legality of any judgment whereby the party petitioning for the writ is in custody, equally denies to every such court and judge the power to inquire into the legality of any process whereby the party is held, where such process is a warrant issued from the circuit court upon an indictment or information. The reasoning in the cases in this State where the validity of the judgment is sought to be questioned applies with equal force to a case where the petitioner is held upon a warrant issued on an indictment or under an order made by the court in which the indictment is pending. The same general doctrine relative to the limitations upon the power of the court upon habeas corpus to inquire into the legality of the judgment or process by which the petititioner is held in custody where a writ of error or appeal will lie, has been recognized constantly by the Supreme Court of the United States. In In re Swan (1893), 150 U. S. 637, 648, 14 Sup. Ct. 225, 37 L. Ed. 1207, it was said by Euller, C. J., who delivered the opinion of the-court: “We reiterate what has so often been said before, that the writ of habeas corpus can not be used to perform the office of a writ of error or appeal.”
Again, in Ornelas v. Ruiz (1895),161 U. S. 502, 508, 16 Sup. Ct. 689, 40 L. Ed. 787, the court held that “by repeated decisions of this court it is settled that a writ of habeas corpus can not perform the office of a writ of error.” See, also Church, Habeas Corpus (2d ed.), §505.
It appears from the petition that the appellant is in
Notwithstanding some expressions found in several decisions referred to in this opinion, we have not thought' it proper to consider the question of the effect of the discharge of the juror by the trial court and the impaneling of a second jury to try the cause. On that subject we intimate nothing. The fact that every attack by writ of habeas corpus in cases of this character is collateral furnishes a sufficient reason why the court should, under no circumstances, express its views upon the merits of the defense to the main case sought to be presented, and anything said upon that subject must necessarily be purely obiter.
Our conclusion is that the court did not err in quashing the writ and remanding the prisoner. Judgment affirmed.