Chemgas v. Tynan

• Decision Date: 01 May 1911
• Citation: 51 Colo. 35,116 P. 1045
• Parties: CHEMGAS v. TYNAN, Warden.
• Court: Colorado Supreme Court

116 P. 1045

51 Colo. 35

CHEMGAS v. TYNAN, Warden.

Supreme Court of Colorado, En Banc

May 1, 1911

John Chemgas applied for a writ of habeas corpus directed to Thomas J. Tynan, Warden of the State Penitentiary. A motion was made to discharge the petitioner on the return. Motion denied.

Petitioner John Chemgas, alleges that he was unlawfully convicted in the district court of the city and county of Denver, and sentenced to the penitentiary on the following information 'State of Colorado, City and County of Denver. ss.--In the District Court. Second Judicial District. The People of the State of Colorado v. Peter Horons & John Chemgas. Comes now Willis V. Elliott, district attorney within and for the Second judicial district in the state of Colorado and in the name and by the authority of the people of the state of Colorado informs the court and gives the court to understand that Peter Horons and John Chemgas on, to wit, the 10th day of January, A. D. 1909, at the city and county of Denver, and state of Colorado, then and there being male persons over the age of fourteen years, in and upon one Ralph I. Frost, a male person over the age of fourteen years and then and there being, feloniously, did make an assault, and then and there feloniously, wickedly, diabolically, and against the order of nature, had a venereal affair with and carnally knew the said Ralph I. Frost. Willis V. Elliott, District Attorney.' That his arrest, trial, conviction, and imprisonment are void because the information is in conflict with section 30, art 6, of the Constitution, in that it does not conclude 'against the peace and dignity of the same.' The return of the warden admits that he holds petitioner by virtue of a mittimus based upon said trial, and that the petition contains a true transcript of the record of said trial and conviction. Petitioner moves to be discharged upon said return.

Section 30, art. 6, of the Constitution, reads: 'All process shall run in the name of 'the people of the state of Colorado'; all prosecutions shall be carried on in the name and by the authority of 'the people of the state of Colorado,' and conclude, 'against the peace and dignity of the same.''

Section 1956, Rev. Stats. 1908, provides: 'All exceptions which go merely to the form of the information shall be made before trial, and no motion in arrest of judgment or writ of error shall be sustained for any matter not affecting the real merits of the offense charged.'

Section 1960 provides. 'The information shall be sufficient if it can be understood therefrom: (1) That it is presented by the person authorized by law to prosecute the offense. (2) That the defendant is named therein, or described as a person whose name is unknown to the informant. (3) That the offense was committed within the jurisdiction of the court or is triable therein. (4) That the offense charged is set forth with such degree of certainty that the court may pronounce judgment upon a conviction according to the right of the case.'

Section 2919, upon habeas corpus, provides: 'If it appear that the person is in custody by virtue of process from any court legally constituted, he can be discharged only for some of the following causes: First. Where the court has exceeded the limit of its jurisdiction, either as to the matter, place sum or person. * * * Seventh. Where there is no general law, nor any judgment, order or decree of a court to authorize the process, if in a civil suit, nor any conviction, if in a criminal proceeding.'

Tapp & Deweese and Isham R. Howze, for petitioner.

John T. Barnett, Atty. Gen., Benjamin Griffith, Atty. Gen., A. A. Lee, Elmer L. Brock, George H. Thorne, and Eugene A. Moran, for respondent.

GARRIGUES, J. (after stating the facts as above).

This is a collateral attack upon the judgment of the district court. If the court had jurisdiction to pronounce judgment, it cannot be reviewed on habeas corpus. If the court had no jurisdiction to pronounce the same, it may be disregarded on habeas corpus. After conviction, however illegal or erroneous, if the court, acted within its jurisdiction, the judgment cannot be set aside on habeas corpus. This principle of collateral attack runs through both the civil and criminal law. The contention of the petitioner is that the complaint charges no offense; hence it is a void proceeding, and the court exceeded the limit of its jurisdiction in pronouncing judgment.

Prosecutions were formerly conducted in the name of the crown; under our changed conditions they are conducted in the name of the people. This prosecution is in the name of and by the authority of the people of the state. The complaint sufficiently informs the defendant that he is prosecuted by the state. It states fully the nature and character of the offense, and that the transaction occurred in the city and county of Denver, Colo. The omitted phrase, 'against the peace and dignity of the same,' is a legal conclusion, not entering into the charging part of the complaint. The court had jurisdiction over the offense charged and over the person of the defendant, and was not robbed of its jurisdiction by the complaint failing to inform him of the legal conclusion that buggery is a crime against the peace and dignity of the people of the state of Colorado. The information is faulty because of this omission, but the district court was not without jurisdiction to pass upon this defect. The facts stated in the information constituted a public offense known to the laws of Colorado sufficient to confer jurisdiction upon the district court. What it should have done, had its attention been called to this omission, or because this court would reverse the case on error, cannot avail the defendant in this proceeding. Counsel neglected to avail himself of a motion to quash, or in arrest of judgment, and failed to have the case reviewed here on error. He has waited until petitioner is serving his sentence in the penitentiary, and now seeks in this collateral proceeding to raise this point for the first time. We do not think that the decisions of this court permit it to be done, unless the information is so drawn as to charge no offense whatever. Frisbie v. U.S., 157 U.S. 168, 15 Sup.

Ct. 586, 39 L.Ed. 657; Ex parte Cain, 56 Tex. Cr. R. 538, 120 S.W. 999; Caples v. State, 3 Okl. Cr. 72, 104 P. 493, 26 L.R.A. (N. S.) 1033; State v. Kirkman, 104 N.C. 911, 10 S.E. 312; State v. Peters, 107 N.C. 876, 12 S.E. 74; People v. District Court, 26 Colo. 380, 58 P. 608; People v. District Court, 33 Colo. 328, 80 P. 888, 108 Am.St.Rep. 98.

The motion to discharge the petitioner on the return will be denied, and he is remanded to the custody of the warden of the petitentiary.

Motion denied.

CAMPBELL, C.J., and BAILEY and GABBERT, JJ., concur.

WHITE J. (dissenting).

The writ of habeas corpus does not perform the office of a writ of error, and the remedy thereby is limited to cases in which the judgment or sentence attacked is void. Nevertheless, if the petitioner be imprisoned under a judgment of a court which had no jurisdiction of the person or the subject-matter, or authority to render the judgment complained of, or exceeded its jurisdiction in the premises, relief should be accorded under the writ. In such cases the judgment is void. Such is the principle announced by the great weight of authority. Hurd on Habeas Corpus (2d Ed.) pp. 324, 327; Re Lane, 135 U.S. 443, 10 S.Ct. 760, 34 L.Ed. 219; Re Tyler, 149 U.S. 164, 13 S.Ct. 785, 37 L.Ed. 689; Re Swan, 150 U.S. 637, 14 S.Ct. 225, 37 L.Ed. 1207. Moreover, it is the law in this state by express terms of the statute. Section 2919, Rev. St., pertaining to practice under the writ of habeas corpus, declares that, 'If it appear that the prisoner is in custody by virtue of process from any court legally constituted, he can be discharged only for some of the following causes: First, Where the court has exceeded the limit of its jurisdiction, either as to the matter, place, sum or person.' Whenever a constitutional requirement in criminal procedure--not merely a constitutional privilege--has been wholly disregarded, and is not in substance found in the very instrument that authorizes the court to act, the orders and judgment of the court in that particular case are necessarily void. Though the court may have possession of the person and general jurisdiction of the alleged crime, yet in that particular case it has not jurisdiction thereof, because an express provision of the Constitution, 'which bounds and limits all jurisdiction,' has been wholly disregarded.

In Re Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118, the Supreme Court of the United States announced the doctrine that a petitioner should be released on habeas corpus if the record disclosed that he had, on the trial in the lower court, been denied a constitutional right. The syllabus is as follows 'Where a court is without authority to pass a particular sentence, such sentence is void, and the defendant imprisoned under it may be discharged on habeas corpus. A judgment in a criminal case, denying to the prisoner a constitutional right, or inflicting a unconstitutional penalty, is void, and he may be discharged on habeas corpus.' In the opinion, page 184 of 131 U.S. page 674 of 9 Sup.Ct. (33 L.Ed. 118) in speaking of the holding in Re Snow, 120 U.S. 274, 7 S.Ct. 556, 30 L.Ed. 658, it is said: 'The court had authority over the case, but we held that it had no authority to give judgment against the prisoner. He was protected by a constitutional provision, securing to him a fundamental right. It was not a case of mere error in law, but a case of denying to a person a constitutional right. And where such a case appears on the record, the party is entitled to be discharged from...