287 N.W. 229 | Minn. | 1939
October 9, 1933, Dunlap was charged with grand larceny in the first degree by an information in the district court of Carver county. The information alleged that he and three confederates stole certain personal property from an occupied dwelling in the nighttime. Another information lodged against him at the same time charged that he with the same confederates stole certain other personal property from the person of Rudolph Luedloff, who was then and there in the same dwelling house described in the other information. He was convicted by juries on both informations and sentenced to consecutive terms in the state penitentiary. Upon the trial of the second information no plea of former jeopardy was entered by Dunlap nor was the question of double jeopardy raised in any other way. The judgments of conviction are fair on their face and import regularity. There is no contention that he was not represented by counsel. Dunlap has now served the sentence on the first conviction and has applied for a writ of habeas corpus to obtain his release from confinement in the penitentiary. He prevailed below.
1. On the face of the two informations the crime charged by each might well be entirely distinct from the other, but in the petition for the writ of habeas corpus it is alleged:
"* * * that, at the same time as he was sentenced on the information on which he is now held, he was sentenced under a judgment entered at the same time on a conviction of grand larceny in the first degree based upon exactly the same facts as the information *44 on which he is now serving time, and has served his full time on the prior conviction, and is, therefore, serving a second time for the same offense under a sentence which he has served in full."
This allegation was admitted in toto in the state's return to the writ, and there appears to be no amendment of that return. The state takes the position that the assertion of the petition was an allegation of a legal conclusion and therefore that its admission was of no effect. However, in our opinion, the statement that the two informations and convictions were based upon exactly the same state of facts constituted an allegation of fact, failure to deny which amounted to an admission of the facts alleged except insofar as the copies of the informations attached to the petition contradicted the allegations of the petition. Union Sewer Pipe Co. v. Olson,
2. Our statute (2 Mason Minn. St. 1927, § 10705) provides that an issue of fact arises upon a plea of former conviction or acquittal for the same offense. State v. Eaton,
3. The question now arises whether the relator may byhabeas corpus at this late date raise and test the question as to whether there was double jeopardy. Habeas corpus is an independent proceeding to enforce a civil right and therefore is a collateral attack upon a criminal judgment. Riddle v. Dyche,
4. The writ may not be used as a substitute for a writ of error or appeal, or as a cover for a collateral attack upon a judgment of a competent tribunal which had jurisdiction of the subject matter and of the person of the defendant. Nor does the fact that petitioner has permitted the time to elapse for an appeal or writ of error give him a right to habeas corpus as a substitute. In Goto v. Lane, supra, where, upon habeas corpus
it was contended that the indictment did not charge a public offense and that there was no due process, the court said [
"The remedy is an extraordinary one, out of the usual course, and involves a collateral attack on the process or judgment constituting the basis of the detention. The instances in which it is granted, when the law has provided another remedy in regular course, are exceptional and usually confined to situations where there is peculiar and pressing need for it or where the process or judgment under which the prisoner is held is wholly void.
"This case does not measure up to that test. The circuit court in which the petitioners were tried and convicted undoubtedly had jurisdiction of the subject matter and of their persons, and the sentence imposed was not in excess of its power. The offense charged was neither colorless nor an impossible one under the law. The construction to be put on the indictment, its sufficiency and the effect to be given to the stipulation were all matters the determination of which rested primarily with that court. If it erred in determining them, its judgment was not for that reason void, Ex parte Watkins, 3 Pet. 193, 203,
The district court of Carver county had jurisdiction of Dunlap and of the subject matter of the crime charged against him. If he had pleaded former jeopardy it would have been a question of fact for that court to determine. As well said by this court in State ex rel. Noonan v. Sheriff,
"The court had jurisdiction to make wrong as well as right decisions in all the stages of the prosecution, and whether those made were right or wrong cannot be raised on habeascorpus."
The question there sought to be raised by habeas corpus was prior acquittal. This court in speaking further with reference to the rulings of the trial court in State ex rel. Noonan v. Sheriff, supra, said [
"However erroneous we might regard them, on error, they cannot be considered nor overruled on habeas corpus, which takes cognizance only of such radical defects of a jurisdictional character as render a proceeding not merely voidable, but absolutely void; for it is quite clear that they are not of this character. Hurd on Habeas Corpus, 332-3. The distinction between these two classes of defects is marked and obvious. An error committed in the exercise of a conceded power or jurisdiction is only voidable in its effect, whereas, an act done without any authority or jurisdiction, or in excess of it, is wholly illegal and void."
Here the error or defect complained of falls within the first class mentioned in the last quotation because the trial court in which Dunlap was convicted had jurisdiction to try the very question of fact now sought to be raised and determined in these proceedings.
5. If the trial court had jurisdiction of the offense and of the defendant, it is only where extraordinary circumstances surrounding *47
the trial make it a sham and a pretense rather than a real judicial proceeding that habeas corpus will lie on the ground that the judgment is a nullity for want of due process, and this is true even though there is a claim of denial of constitutional rights. Goto v. Lane,
6. The relator places his principal reliance upon the case of Hans Nielsen, Petitioner,
7. In the Nielsen case the government sought to prosecute Nielsen in the territory of Utah for adultery with one of his plural wives after he had been convicted for violation of the act of congress forbidding plural cohabitation covering the period for which he was later charged with the adultery. In that case the defendant pleaded former conviction on the arraignment on the indictment for adultery, the plea was overruled, and the defendant was tried and convicted and a commitment rendered him into the custody of the United States marshal for incarceration in the territorial penitentiary. Thereupon he applied for a writ of habeas corpus, which was denied by the district court, and Nielsen appealed to the Supreme Court of the United States, which reversed the district court and remanded the case with directions to issue the writ as prayed for. The decision was based upon the theory that where the plea of former jeopardy was properly raised and established the court was without authority to render a judgment because the rendition of such a judgment would be a violation of the defendant's constitutional immunity against double jeopardy for the same offense. The court seems to have given no weight to the fact that the trial court in which the plea was raised had jurisdiction to try the plea, and if it determined the issue erroneously its decision could be reviewed by writ of error. The Nielsen case was cited to the court in the subsequent case of Goto v. Lane, supra, from which we have quoted above, and in Riddle v. Dyche,
The order of the trial court is reversed, the writ ofhabeas corpus is discharged, and the petitioner is remanded to the custody of the warden of the Minnesota State Prison for execution of the sentence of the district court on the second information.
So ordered and adjudged.
MR. JUSTICE HILTON, being incapacitated by illness, took no part. *49