154 P. 713 | Mont. | 1916
Lead Opinion
delivered the opinion of the court.
Habeas corpus. The petitioner, Floyd Lewis, is now confined in the state prison under a judgment of conviction for the crime of statutory rape, said judgment having been pronounced by the district court of Yellowstone county, conformable to a verdict which declared his guilt and assumed to fix his punishment “at not less than two years nor more than two years.” He seeks his release and an absqlute discharge upon the ground that the verdict and judgment are void because they do not comply with the requirements of the Indeterminate Sentence Act (Laws 1915, p. 21).
The express provisions of this Act are that in convictions for certain offenses, including statutory rape, the verdict- — if the jury fix the punishment — and the judgment in any event, must, “instead of fixing the punishment at a definite term,” prescribe a minimum not less than the minimum fixed by the statute for the offense involved, and a maximum not greater than the maximum so established. Sufficient reasons are stated by Mr. Chief Justice Brantly in Collins’ Case, ante, p. 215, 152 Pac. 40, for the conclusion that the verdict and judgment are not in compliance-with the Act, and the effect of such circumstance is the question before us.
As regards the verdict, no difficulty is presented; it amounts to nothing more nor less than a conviction of the offense charged in the information (Rev. Codes, sec. 9322; Ex parte Brown, 68 Cal. 176, 8 Pac. 829), with an abortive attempt to fix the punishment. The effect of such a condition is settled by statute, for upon the return of such a verdict it becomes the duty of the presiding judge to assess and declare a proper punishment just as though the jury had attempted no expression upon the subject. (Rev. Codes, sec. 9330.)
That the conviction or acquittal of a person tried for crime
Petitioner' calls our attention to State v. District Court, 35 Mont. 51, 88 Pac. 564, which, upon first impression, seems to support his claim to an absolute discharge; but an examination of this decision with the record disclosing just what was before this court will show that such impression is illusory. The proceeding was on supervisory control brought by the state to review an order of the district court of Deer Lodge county on habeas corpus, and the facts as made to appear to the district court were that the applicant, Fairgraives, had been convicted of a misdemeanor in the district court of Silver Bow county, Hon. Michael Donlan, Judge presiding, but committed to the state prison for the offense as a felony. It is worthy of note that the order which was reviewed and upheld by this court discharged Fairgraives from the custody of the prison contractors and committed him to the custody of the sheriff of Silver Bow county, to be dealt with by Judge Donlan as might be meet and proper. It is fair to say, however, that the only question really presented in this court was the propriety of the discharge from the custody of the prison contractors, neither side challenging the recommitment to the sheriff. Manifestly, if this decision be at all pertinent to the present inquiry, it is a precedent for the order which we propose to enter.
A situation more truly analogous to that now before us was presented by In re McDonald, 49 Mont. 454, L. R. A. 1915B, 988, 143 Pac. 947, concluding which we said: “The trial and commitment of petitioner Gillis were void and his detention thereunder cannot be upheld. But he is not entitled to his release. The record discloses an abortive attempt to try and punish him for an alleged violation of the laws of the state. He must, therefore, be remanded to the custody of respondents to be dealt with according to law.”
Dissenting Opinion
I dissent. The judgment entered against this petitioner in the district court is void and the commitment under which the warden assumes to imprison him is a nullity.
This court has no original jurisdiction in criminal cases, and I challenge its authority to issue a commitment under which the sheriff of Yellowstone county can hold this petitioner in confinement until such time as a judgment may be rendered and entered against him in the district court. At least until that judgment is rendered — whether it be done within one month or six months — this petitioner will be deprived of his liberty without due process of law, the constitutional guaranty notwithstanding.
The decision of the majority converts the writ of habeas corpus into a writ of review, and the cause is treated and disposed of as though the case of the State v. Lewis was before this court on appeal. In this state the writ of habeas corpus is the writ as it was known to the law at the time our Constitution was adopted in 1889, and in an application of the character of the one now before us the inquiry upon the return is limited to a determination of the question: Is the imprisonment or restraint legal? (Sec. 9642, Rev. Codes.) Sections 9643 and 9650, Revised Codes, specify particularly when the applicant may be remanded to custody, but the circumstances of the present case do not approach the conditions enumerated therein.