State Ex Rel. Hagen v. Overby

210 N.W. 652 | N.D. | 1926

This is an original application for a writ of habeas corpus, presented to this court after denial of a similar application by Honorable W.J. Kneeshaw, Judge of the District Court of the Second Judicial District. The proceeding before us is a sequel to State ex rel. Shafer v. Lowe, ante, 637, 210 N.W. 501. A full statement of the pertinent facts appears in the decision in that case. The grounds urged in support of the application for a writ of habeas corpus are the same as those which were urged by the respondent in State ex rel. Shafer v. Lowe, supra, in support of the order there involved. The contention here, as in that proceeding, is that the petitioner has in effect been denied the right of appeal and that, consequently, an enforcement of the judgment of conviction will result in his being deprived of his liberty without due process.

The unquestioned rule is that habeas corpus cannot be substituted for appeal; that errors of law, committed by a court in the exercise of its jurisdiction over a criminal case properly subject to its cognizance cannot be reviewed by habeas corpus; that habeas corpus will lie in behalf of a person held in custody under a sentence of conviction of crime only in case the judgment, under which the prisoner is detained, is shown to be void for want of jurisdiction in the court that pronounced it, either because such jurisdiction was absent at the beginning, or because it was lost in the course of the proceedings. See §§ 11,360 and 11,373, Comp. Laws 1913; State ex rel. Neville v. Overby, ante, 295, 209 N.W. 552; Frank v. Mangum, 237 U.S. 309, 59 L. ed. 969, 35 Sup. Ct. Rep. 582.

In light of the facts which were brought to the attention of this court in the consideration of the appeal involved in State v. Hagen, ante, 136, 208 N.W. 947, also, in the consideration of the various motions made in this court during the pendency of the appeal from the judgment in the same action, as well as in the case of State ex rel. Shafer v. Lowe, supra, it cannot be said that the relator was in effect denied the right of appeal through the loss of a portion of the stenographic notes of the trial. Moreover, we are of the opinion that the judgment of conviction, under which the petitioner is being detained, is valid.

The application for the writ is denied.

CHRISTIANSON, Ch. J., and NUESSLE and BIRDZELL, JJ., and JANSONIUS, Dist. J., concur.

Mr. Justice BURKE being disqualified, did not participate; Honorable FRED JANSONIUS, Judge of the Fourth Judicial District, sitting in his stead.