156 P. 1078 | Mont. | 1916
delivered the opinion of the court.
Habeas corpus. The complainant is confined in the state prison under a judgment of conviction for assault in the first
Instead of requiring the jury to amend the verdict to make it conform to the requirements of the Indeterminate Sentence Law (Laws 1915, p. 21), the court accepted it, and permitted it to be filed with the'clerk. Thereafter in pronouncing sentence, it disregarded the attempt of the jury to assess the punishment and sentenced complainant to a term of not less than ten nor more than twenty years in the state prison, the latter being the maximum fixed by the statute for this crime. (Laws 1911, p. 9.) The complainant insists that the judgment is void, in that the verdict is insufficient to support it, and hence he is entitled to his release.
There can be no question that the jury intended to exercise the discretion vested in them by the statute. (Eev. Codes, sec. 9329.) This is evidenced by the fact that they fixed a maximum of punishment. Since they were vested with this discretion and it was apparent that they failed to exercise it properly by fixing the minimum as well as the maximum, it was the duty of the court to send them out again under proper instructions to supply the omission. (Eev. Codes, sec. 9323.) Complainant had the right to demand that this course' be pursued, and by timely objection to the reception of the verdict and reservation of his exception to put himself in a position to assail the integrity of the judgment on appeal. But it does not therefore follow that the judgment is wholly void. Let it be conceded that the court committed prejudicial error. Such error did not divest it of jurisdiction to assess the punishment and pronounce
The3 application is therefore dismissed, and the complainant is remanded to the custody of the warden of the state prison.
Dismissed.