140 P.2d 362 (Kan. 1943), 35975, James v. Amrine

Docket Nº35975.
Citation140 P.2d 362, 157 Kan. 397
Opinion JudgeHOCH, Justice.
Party NameJAMES v. AMRINE, Warden of Kansas State Penitentiary.
AttorneyShelley Graybill, Asst. Atty. Gen. (A. B. Mitchell, Atty. Gen., and John H. Murray, County Atty., of Leavenworth, on the brief), for appellant. C. M. Stokes, of Topeka, for appellee.
Case DateJuly 27, 1943
CourtSupreme Court of Kansas

Page 362

140 P.2d 362 (Kan. 1943)

157 Kan. 397

JAMES

v.

AMRINE, Warden of Kansas State Penitentiary.

No. 35975.

Supreme Court of Kansas

July 27, 1943

Page 363

Syllabus by the Court.

Proceeding in habeas corpus is not a substitute for appellate review.

Habeas corpus may not be used to review nonjurisdictional errors and irregularities leading up to the judgment in a criminal prosecution.

Clerical error to which no objection was made at trial whereby information charged crime as having been committed approximately six months after trial did not render information "void", or vitiate subsequent proceedings, and information was at most "voidable" and was not subject to collateral attack, and trial court had jurisdiction to proceed with trial.

In habeas corpus proceeding, wherein petitioner who has been convicted and sentenced for a criminal offense challenges sufficiency of information on which prosecution was had, question is whether information was sufficient to give trial court jurisdiction to enter on trial.

Where form of indictment does not preclude accused from asserting in some manner every substantial right which accused may have, accused may not complain that form has infringed a constitutional right of accused.

Petitioner for writ of habeas corpus is not entitled to discharge, on challenge to regularity of proceedings in criminal action which resulted in petitioner's conviction and sentence, unless irregularities complained of were of such a character as to render proceedings void.

Order of unconditional discharge in habeas corpus proceeding may not be stayed pending appeal, in absence of statute specifically providing for stay.

Appeal from order of unconditional discharge in habeas corpus proceeding does not automatically effect stay, though stay is specifically authorized by statute.

Where officer having custody of prisoner was directed, in habeas corpus proceeding, to release prisoner within specified number of days, and in compliance with order released prisoner before taking appeal from order and without seeking stay of execution thereof, release did not constitute such "acquiescence" in the judgment as to preclude appeal therefrom.

Right to appeal is not "waived" by acts which appellant was under duty to perform.

In order to bar right of appeal on ground of acquiescence in judgment or order appealed from, acts relied on as waiver or estoppel on such ground must be such acts as clearly and unmistakably show inconsistent course of conduct or an unconditional, voluntary and absolute acquiescence.

Warden of penitentiary who was ordered in habeas corpus proceeding to discharge prisoner had sufficient interest in proceeding, as a public officer, to appeal from order.

Defect in information whereby crime was charged as having been committed on date approximately six months after trial was not subject to attack by habeas corpus proceeding to obtain defendant's release from penitentiary.

In habeas corpus proceeding, release of prisoner prior to appeal did not foreclose warden's right to appeal from order of discharge.

1. A proceeding in habeas corpus is not to be regarded as a substitute for appellate review.

2. Habeas corpus can not be used to review nonjurisdictional errors and irregularities leading up to judgment.

3. In a proceeding in habeas corpus wherein the petitioner, having been convicted and sentenced for a criminal offense, challenges the sufficiency of the information upon which the prosecution was had, the question is whether the information was sufficient to give the court jurisdiction to enter upon the trial.

4. A petitioner in habeas corpus is not entitled to discharge, on a challenge to the regularity of the proceedings in a criminal action which resulted in his conviction and sentence, unless the irregularities complained of were of such a character as to render the proceedings void.

5. Where an officer having custody of a prisoner is directed, in a proceeding in habeas corpus, to release the prisoner within a specified number of days and in compliance with the order releases the prisoner before taking appeal from such order and without seeking stay of execution of the order, such release does not constitute such an acquiescence in the judgment as to preclude appeal therefrom.

6. In a proceeding in habeas corpus the petitioner, an inmate of the state penitentiary who had served more than seventeen years under a life sentence for murder in the first degree, challenged the sufficiency of the information upon which the prosecution was had. It appears that in the information, otherwise regular, the date specified when the murder was alleged to have been committed was several months in the future. The record is examined, and Held: (a) The defect--obviously clerical in character--in the information to which no objection was made at the trial, did not render the information or the subsequent proceedings void; (b) The trial court, in the criminal action, had jurisdiction to proceed with the trial; (c) The defect complained of is not subject to attack by a proceeding in habeas corpus.

Appeal from District Court, Leavenworth County; J. H. Wendorff, Judge.

Habeas corpus proceeding by Alex James, sometimes spelled Aleck James, against Milton F. Amrine, Warden of the Kansas State Penitentiary, to obtain petitioner's release from the penitentiary. From an order discharging petitioner from custody, respondent appeals.

Reversed, with directions.

SMITH and THIELE, JJ., dissenting in part.

Shelley Graybill, Asst. Atty. Gen. (A. B. Mitchell, Atty. Gen., and John H. Murray, County Atty., of Leavenworth, on the brief), for appellant.

C. M. Stokes, of Topeka, for appellee.

HOCH, Justice.

This is an appeal by the warden of the penitentiary from an order discharging a prisoner in a proceeding in habeas corpus. The primary question is whether the petitioner's conviction and sentence were void because of irregularity in the information.

In June, 1925, Alex James, the appellee, was tried and convicted by a jury in Shawnee county, Kansas, on a charge of murder in the first degree. On July 11, 1925 he was sentenced to life imprisonment and was regularly committed to the Kansas State Penitentiary on February 2, 1926. He remained incarcerated there until discharged under an order of June 5, 1943, from which this appeal was taken.

Appellee's petition for a writ was filed in the district court of Leavenworth county on April 13, 1943. The writ was issued on the same day and the matter was heard on April 23, 1943, the petitioner appearing in person and by his attorney and the warden appearing by the county attorney and the assistant county attorney. No oral testimony was received. The case was determined solely on a question of law. The trial court found that "said restraint is illegal, void and of no effect and that the District Court of Shawnee County, Kansas was without jurisdiction to render any judgment or conviction under the information filed in said action", and ordered the warden to release the petitioner "within ten (10) days from the receipt" of the certified copy of the journal entry. The order further directed that a certified copy of the order be forwarded to the county attorney of Shawnee county. A few days after the order was entered the warden released the prisoner. The record before

Page 364

us does not disclose the exact date of the release but we were advised by counsel that it was several days prior to the notice of appeal which was filed on June 12, 1943. There was no motion in the court below for stay of execution of the order of discharge pending appeal nor was there any motion to require bond for delivery of petitioner in case the order of discharge were set aside upon appeal.

The issue turns upon an inaccuracy-- an absurd inaccuracy--in the information upon which appellee was tried in June, 1925. The information, which was dated June 8, 1925 recited that the murder was committed "on the -- day of December, 1925"--about six months after the trial! The question is whether all proceedings in the criminal trial were void because of this defect in the information.

The general rules or principles of law relating to this unusual situation are well established. The question is largely one of...

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