Upon relator’s appeal from an order of the district court denying his petition for a writ of habeas corpus, respondent moves for a dismissal of the appeal.
On March 24, 1948, a sworn complaint was made and filed in the municipal court of Mankato, Minnesota, charging that appellant committed the crime of carnal knowledge with a female child on or about October 20,
1946.
Subsequently a warrant was issued on the basis of the complaint alleging that the above crime was committed on October 20,
1948.
Appellant was arrested and
We are not advised as to what occurred between March 24, 1948, and April 8, 1948 — the date sentence was imposed. It appears, however, from the transcript of the proceedings before the district court on April 8, 1948, that prior thereto an information had been filed and that upon arraignment appellant entered a plea of guilty. On the day of sentence, Carl W. Peterson was formally appointed counsel for appellant, and appellant was sentenced upon his plea of guilty for the crime of carnal knowledge committed on October 20, 1946.
Appellant asserts that he was illegally convicted upon the following grounds:
(a) That he was sentenced without a plea of guilty or without a verdict of guilty by a jury.
(b) That his arrest was illegal in that the warrant under which he was arrested charged the commission of a crime on October 20, 1948, whereas the complaint upon which the warrant was based alleged the commission of a crime on October 20, 1946.
(c) That he did not have the assistance of counsel.
Appellant’s contention that sentence was imposed without a formal plea of guilty is without merit. If we were to hold otherwise, we should be exalting the shadow of a meaningless technicality for substance. Although the record may not contain, as it should, a formal plea of guilty, an adjudication of guilt based on such a plea is not subject to attack if the record of the proceedings leading to the sentence of the accused unmis
“You, Carl T. Schwanke, upon your own plea of guilty stand convicted of the crime of carnal knowledge of a female child, said crime having been committed on the 20th day of October, 1946.” (Italics supplied.)
The warrant, pursuant to which appellant was arrested and brought before the court, erroneously stated that the crime was committed on October 20,
1948.
The complaint, information, and sentence, however, all gave the correct date as October 20,
1946.
The typographical error in the warrant did not deprive the court of its jurisdiction. A warrant in a criminal case has the sole function of giving the court jurisdiction over the person of the accused
by bringing him in person before the court to answer the charge made against him;
and, once the accused is before the court, the warrant becomes wholly inoperative and any defect therein ceases to be material. State v. Nugent,
Was appellant denied the assistance of counsel in violation of Minn. Const, art. 1, § 6, and in violation of the due process clause of both Minn. Const, art. 1, § 7, and U. S. Const. Amend. XIY? It is elementary that the right to counsel guaranteed by U. S. Const. Amend. YI, has no application to a state criminal prosecution. 7 Minn. Const, art. 1, § 6, gives the defendant the right to have the assistance of counsel in his defense. 8 It is also provided by M. g. A. 630.10 that:
“If the defendant shall appear for arraignment without counsel, he shall be informed by the court that it is his right to have
It goes without saying that good practice not only requires that the court, before arraignment, inform the defendant,
in precise
terms, of his constitutional right to the assistance of counsel but that such informative action by the court
be made a matter of record.
State v. McDonnell,
“Q. * * * Have counsel anything to say before sentence is imposed?”
Mr. Peterson replied:
“Nothing beyond what has been explained to the court in chambers.”
In other words, immediately before his sentence appellant was provided with an attorney. That such attorney had, prior to such official appointment, given thought and consideration to appellant’s case is indicated by his reply to the court that he had nothing to say “beyond what had been explained to the court in chambers.” (Italics supplied.) In the light of all these circumstances, was appellant denied due process of law by reason of the failure of the court to inform him prior to arraignment of his right to counsel as required by § 630.10?
It is elementary that habeas corpus 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, and this principle is applicable even though defendant has. permitted the time for appeal to elapse. State ex rel. Baker v. Utecht,
supra;
State ex rel. Dunlap v. Utecht,
We have not overlooked the failure of the clerk of the court to comply with § 640.10 with respect to the furnishing of certain commitment papers' when a convict is sentenced to the state prison. The statute need not be considered in that it has no connection with the jurisdiction of the court. The trial court’s order denying appellant’s petition for a writ of habeas corpus is affirmed.
Affirmed.
Notes
State v. Nugent,
State v. Binder,
State v. Volk,
Commonwealth v. Tay,
State v. Chandler,
Gaines v. Washington,
Opinion Attorney General, No. 605-A-4, July 31, 1931 (section does not require court to inform defendant).
As to the denial of counsel under the due process clauses — and as to the intentional and competent waiver of counsel by the accused — see Betts v. Brady,