Bandy v. Hehn

• Decision Date: 05 March 1902
• Parties: BANDY v. HEHN, WARDEN OF THE STATE PENITENTIARY
• Court: Wyoming Supreme Court

67 P. 979

10 Wyo. 167

BANDY v. HEHN, WARDEN OF THE STATE PENITENTIARY

Supreme Court of Wyoming

March 5, 1902

HABEAS CORPUS.

James Bandy applied for discharge on habeas corpus from the state penitentnary, where he was imprisoned under a sentence of the District Court of Crook County as for grand larceny. The petition alleged the cause of the restraint, charged to be illegal, to be a certain mittimus issued out of said court commanding the warden of the penitentiary to receive and confine the plaintiff in that institution for the period of two and one-half years. The illegality of the imprisonment was alleged to consist in the following: That an information was filed in said court against the plaintiff charging the crime of grand larceny, in the stealing and carrying away of a watch of the value of fifty dollars, and to that information the plaintiff pleaded guilty to petit larceny which plea was accepted; and that, upon being brought up for sentence, the court adjudged him guilty of grand larceny without any evidence being introduced against him, or his identification as one who had been previously convicted of the same offense, and without a jury, and against his objection, and over his request to withdraw his plea of guilty of petit larceny and plead not guilty. It appeared from certain orders of the court attached to the petition and not disputed that the sentence was pronounced as for the crime of grand larceny in consequence of a journal record showing a former conviction of the prisoner for the crime of petit larceny. The writ was issued. The return and answer of the respondent merely set out the mittimus and judgment of the court requiring the imprisonment of the prisoner. A reply was filed denying the legality of the imprisonment under such mittimus and judgment. Upon a hearing on the pleadings and record of the prisoner's conviction and sentence, the cause was heard, resulting in the prisoner's discharge. The other material facts are stated in the opinion.

Nichols & Adams, for the plaintiff.

The District Court could not, on its own motion, find the prisoner guilty of grand larceny, or even petit larceny as for a second offense, and sentence him to the penitentiary without some kind of a charge against him for such, and after a hearing by a jury, or a plea of guilty for said higher offense. The statute provides that all crimes that may be punished by death or imprisonment in the penitentiary are felonies, and all other are misdemeanors. (R. S., Sec. 5191.) Hence, to find a person guilty of petit larceny as for a second offense is to find him guilty of a felony, and after one pleads guilty to petit larceny, which is a misdemeanor the court cannot without the intervention of a jury or a plea of guilty find him guilty of a felony. The action of the court was in direct violation of Section 7, Article 1, of the constitution, as well as of Sections 6, 7, 9 and 10 of the same article. (8 Ency. L., 487, and notes.) The plaintiff should be discharged on habeas corpus, since the court did not have jurisdiction to render the judgment under which he is confined and restrained of his liberty. (Ex p. Webb, 24 Nev. 238; 51 P. 1027; Brown Jur., Secs. 97, 98, 110; Ex p. Clark, 126 Cal. 235; Miskimmons v. Shaver, 8 Wyo., 392; Church Hab. Corp., Secs. 362, 367, 368, 351; Ex parte Maule, 19 Neb. 698; 27 N. W., 119; Hamilton Case, 51 Mich. 174; Ex parte Dela, 60 P. 217; People v. Liscomb, 60 N.Y. 559; 98 F. 984; 100 F. 639; 1 Pet., 328; 8 How., 540; Hurd Hab. Corp., 326-329; 26 W.Va. 37; 49 Mo. 291; 109 Ga. 62; 25 Fla. 214.) The failure of the mittimus to designate the crime for which the prisoner was sentenced is of itself sufficient to entitle him to be discharged.

J. A. Van Orsdel, Attorney General, for the respondent.

There are three lines of authority covering statutes such as ours providing that upon a second conviction of petit larceny a person convicted shall suffer the punishment prescribed for those convicted of grand larceny. One line of authority is to the effect that the second offense must be specifically charged in the information; another line of authority is to the effect that it is not necessary to charge the second offense in the information, but that before sentence can be pronounced and the defendant committed for grand larceny, a sufficient showing must be made by the prosecution to inform the court by the introduction of the record of the first conviction, and such other evidence as may be necessary to inform the court of the fact that this is a second offense. There is also a line of authority to the effect that neither of these precautions on the part of the prosecution are necessary that the court may take cognizance of the second conviction and sentence accordingly. I am of the opinion that the procedure requiring the second offense to be set out in the information is by all odds the best practice.

The language of our statute, however, must be considered.

It will be observed by the court that the relator in this case was not sentenced for the crime of grand larceny, nor committed to the penitentiary for that offense, but for the crime of petit larceny under a second conviction. (Atty. Gen'l. Rep., 1897-98, p. 64, for authorities.) As to the method of procedure necessary to be followed in prosecutions of this kind, I will not cite authorities, for the three lines of procedure above referred to are all well defined. In this case it appears that the court took judicial cognizance of the first conviction and fixed the sentence under the second conviction, as provided in such cases for petit larceny.

The case is not here upon error. I am convinced that this record is not such a record as under the authorities will support a writ of habeas corpus; that the petitioner must be relegated to a proceeding in error to properly raise the question complained of.

"If the question is upon the judgment of a court of competent jurisdiction, the petitioner in habeas corpus cannot impeach it upon the ground of an error or irregularity in the proceedings and sentence of the court, which does not go to the extent of impairing or taking away its power or jurisdiction to act in the case. The reason is this, if any such erroneous or irregular action has occurred he has his appeal, on error or certiorari, and although on a review of an Appellate Court the objections presented might be amply sufficient to procure a reversal of the judgment, yet he cannot make the proceedings by habeas corpus a short cut to the same result, because that would be wresting the extraordinary remedy away from its proper object to make it subserve an entirely different purpose." (Black on Judgments, Sec. 255, and cases cited.) The writ will lie for lack of jurisdiction, or it will lie where the cause for which the petitioner has been committeed, "is a cause for which a man ought not to be imprisoned." This, as I understand it, was the distinction made in the Miskimmins case, 8 Wyo. 392.

But in the case at bar the facts are different. Petit larceny and upon conviction of a second offense are crimes for which men ought to be imprisoned who commit them. There is no question as to the commission of this offense by the petitioner; he admits it by his plea of guilty. The District Court of Crook County has general criminal jurisdiction extending to all crimes committed under the laws of this State, among which are the crimes of petit larceny and petit larceny upon a second offense. This is clearly a case that should be in this court upon error.

An error by the trial court in fixing the period of sentence, though the court may sentence for a greater or less number of years than is authorized by the statutes, is not void, but voidable. (Ex parte Shaw, 7 O. S., 81; Ex parte Van Hagan, 25 O. St., 432; People v. Kavanaugh, 2 Abbott Practice, 89; Ex parte Bond, 9 So. Car., 80; Ex parte Crandall, 34 Wis. 177.)

Using the language of the Ohio decision, the court in the case at bar "had jurisdiction over the offense and its punishment." It had authority to pronounce sentence; it pronounced a sentence that in length of time is within the limits prescribed by the statute for the crime of petit larceny upon the second conviction. The defendant was not committed or sentenced for grand larceny, but for petit larceny, and the manner in which the court arrived at and determined the fact that this was a second conviction may have been erroneous; the court may have committed a manifest error, but "the sentence was not void, but erroneous."

CORN, JUSTICE. POTTER, C. J., and KNIGHT, J., concur.

OPINION

CORN, JUSTICE.

An information was filed in the District Court charging the petitioner with the crime of grand larceny. He pleaded guilty of petit larceny, the plea was accepted by the prosecuting officer and entered in the journal of the court, and he was remanded to await sentence. Upon being called up for sentence he was informed that he would be sentenced to the penitentiary, the records of the court showing that he had once before been convicted of petit larceny; whereupon he asked leave to withdraw his plea of guilty and to plead not guilty to the information. This the court refused to permit for the reason that material witnesses against him had been permitted to depart and the jury for the term had been discharged. The court then proceeded to...