89 P. 63 | Mont. | 1907
delivered the opinion of the court.
On October 13, 1905, an information was filed in the district court of Silver Bow county charging Andrew Fairgraives with the crime of assault as defined in section 403 of the Penal Code, which reads as follows: ‘ ‘ Every person who willfully and maliciously places or throws, or causes to be placed or thrown upon the person of another, any vitriol, corrosive acid, or caustic chemical of any nature, with the intent to injure the flesh or disfigure the body of such person, is punishable by imprisonment in the state prison not less than one nor more than fourteen years. ’ ’
Upon the trial the jury returned the following verdict: “We, the jury in the above-entitled action, find the defendant, Andrew Fairgraives, guilty of the crime of assault with corrosive acids, and caustic chemicals, and leave his punishment to be fixed by the court.” The court thereupon rendered its judgment that
The ground upon which Fairgraives urged his release from the penitentiary is that, although he was charged with the commission of a felony, he was convicted only of a misdemeanor. It is to be observed that it is not every assault with vitriol, caustic acids, or corrosive chemicals, which is designated a felony by section 403 above, but only such an assault as is made willfully,, maliciously, and with the intent to injure the flesh or disfigure the body of the person assaulted. The willfulness, malice and intent to injure are necessary requisites in order to constitute the assault a felony. The verdict finds the defendant guilty of an assault with corrosive acids and caustic chemicals. It wholly fails to find that the assault was committed willfully or maliciously, or with the intent to injure the flesh or disfigure the body of the person assaulted. It is therefore clear that the jury did not find Fairgraives guilty of a felony, because they failed to find the elements necessary to constitute a felony.
The case of State v. Eschbach, 13 Mont. 399, 34 Pac. 179, is parallel with this case in the district court. Eschbach was charged with the crime of assault with a deadly weapon, instrument, or other thing, with an intent to inflict upon the person of
In a case of this character, where a final judgment has been rendered, it must be conceded that the writ of habeas corpus is not designed to fulfill the functions of an appeal. It is not intended to bring up for review mere errors or irregularities, relating to substantive rights or matters of procedure, committed by the trial court. Its only office is to challenge the jurisdiction of that court. (21 Cyc. 285, 294.) But the fact that the petitioner has a plain remedy at law by way of appeal is not even an argument against the issuance of the writ. In Re Downey, 31 Mont. 441, 78 Pac. 772, this court said: “The appealable or nonappealable character of the order is not determinative of the
While there is some conflict between the early and later decisions as to the scope of the meaning of the term “jurisdiction” as applied to a case of this character, the decided weight of authority now supports the view that, in order for the judgment to be proof against an attack made by habeas corpus proceedings, the court rendering it must have had jurisdiction of the person and of the subject matter, and, in addition thereto, must have possessed the power or authority .to render the particular judgment which it did pronounce; and the absence of any one of these factors renders the judgment void, and, consequently, open to collateral attack. (Brown on Jurisdiction, sec. 110; 1 Black on Judgments, sec. 258; In re Garvey, 7 Colo. 384, 49 Am. Rep. 358, 3 Pac. 903; Ex parte Cox, 3 Idaho, 530, 95 Am. St. Rep. 29, 32 Pac. 197; Ex parte Bulger, 60 Cal. 438; People ex rel. Tweed v. Liscomb, 60 N. Y. 559, 19 Am. Rep. 211; Ex parte Lange, 18 Wall. 163, 21 L. Ed, 872; Ex parte Reed, 100 U. S. 13, 25 L. Ed. 538; Ex parte Yarbrough, 110 U. S. 651, 4 Sup. Ct. 152, 28 L. Ed. 274; In re Bonner, 151 U. S. 242, 14 Sup. Ct. 323, 38 L. Ed. 149; 21 Cyc. 296, and cases cited.)
In reaching its conclusion that jurisdiction to render the particular judgment is as essential as jurisdiction of the person or subject matter, the supreme court of the United States, in Ex parte Lange, above, in illustrating its position, said: “It is no answer to this to say that the court had jurisdiction of the person of the prisoner and of the offense under the’ statute. It by no means follows that these two facts make valid, however er
While the supreme court of the United States, in Be E chart, 166 U. S. 481, 17 Sup. Ct. 638, 41 L. Ed. 1085, does not announce any contrary conclusion, we confess ourselves unable to reconcile some of the matters stated in that opinion with the decisions in the cases cited above.
Since the district court of Silver Bow county had no power or authority to impose a sentence of imprisonment in the penitentiary upon Fairgraives for a misdemeanor, its judgment was simply void, and Fairgraives was entitled to be discharged from the custody of the prison contractors upon habeas corpus; for the defect was one of jurisdiction. The district court, in sentencing him to such imprisonment, clearly exceeded its jurisdiction, and in discharging him from the custody of the prison contractors the district court of Deer Lodge county was clearly acting within the authority granted by section 2754 of the Penal Code, which, among other things, provides: “If it appears on the return of the writ that the prisoner is in custody by virtue of process from any court of this state, or judge or officer thereof, such prisoner may be discharged in any of the following cases, subject to the restriction of the last section: (1) When the jurisdictiin of such court or officer has been exceeded.
Dismissed.