Kabanya v. Fogarty
| Decision Date | 31 May 1923 |
| Docket Number | 24,194 |
| Parties | Kabanya v. Fogarty |
| Court | Indiana Supreme Court |
From Laporte Superior Court; Harry L. Crumpacker, Judge.
Application by John Kabanya for a writ of habeas corpus directed to Edward J. Fogarty, warden of the Indiana State Prison. From an order overruling exceptions to the return and quashing the writ, the plaintiff appeals.
Affirmed.
Tuthill & Williams and James Percival Pio, for appellant.
U. S Lesh, Attorney-General, and Connor D. Ross, Deputy Attorney-General, for appellee.
This is a writ of habeas corpus to appellee, warden of the Indiana State Prison at Michigan City. The trial court overruled exceptions to the return, quashed the writ, and remanded appellant, prisoner. Appellant's contentions are based on the following judgment: "It is therefore considered, adjudged and decreed by the Court that the defendants for the offense by them committed, to wit: Conspiracy, do make their fine to the State of Indiana in the sum of $ 500 each and that the said defendants be and they are hereby imprisoned at the Indiana State Prison at Michigan City, for a period of not less than two nor more than fourteen years from this date."
Appellant says that there is no such crime as "conspiracy" and, that the judgment is therefore void. He also contends that the judgment is void because the sentence of imprisonment is joint. That is to say, when two defendants are sentenced from two to fourteen years, it cannot be determined how long each is to serve. In other words, it cannot be told how long each is "in" and therefore, both are "out," if writ is asked. It is true that there is no such crime as "conspiracy" under our Code. The crimes are, conspiracy to commit a felony, § 2647 Burns 1914, Acts 1905 p. 584, § 641, and, riotous conspiracy, § 2335 Burns 1914, Acts 1905 p. 584, § 439. But when appellant convinces us that there is no such crime as "conspiracy" and then says that the judgment is void, he begs one question, namely, Is it absolutely essential to the validity of the judgment that the crime be named at all? Or, to put the question another way, Will the fact that the crime is misnamed make the judgment void? In answer to this question, we shall be content to quote a leading text book, as follows: "A sentence is not a nullity, and can not be reviewed on habeas corpus simply because it fails to definitely state the offense of which the defendant was convicted, or does not state it at all, provided the record shows that he was indicted for some offense, and tried and convicted, and that the sentence passed on him was one which the court had jurisdiction to pronounce for an offense of which he might have been convicted under the indictment." Church, Habeas Corpus (2d ed.) § 365.
Applying this test to the instant case, we have a record which shows an affidavit against the appellant and another, for the crime of conspiracy to commit grand larceny, a crime designated by § 2647 Burns 1914, supra, the punishment for which is fine of not less than $ 25 nor more than $ 500 and imprisonment in the state prison not less than two years nor more than fourteen years. Now, just preceding the part of the judgment which we have heretofore set out, the record discloses the following:
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...and over the subject-matter, and also his jurisdiction to enter the particular judgment which he does enter.' Kabanya v. Fogarty, 1923, 193 Ind. 297, 301, 139 N.E. 449, 450. 7 In view of the many confusing statements about the nature and extent of jurisdiction, we feel the reasoning of Mr. ......
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