Cook v. State

• Decision Date: 26 May 1926
• Docket Number: No. 5119.,5119.
• Citation: 208 N.W. 977,54 N.D. 178
• Parties: COOK v. STATE et al.
• Court: North Dakota Supreme Court

54 N.D. 178

208 N.W. 977

COOK

v.STATE et al.

No. 5119.

Supreme Court of North Dakota.

April 22, 1926.

Rehearing Denied May 26, 1926.

Syllabus by the Court.

On habeas corpus, the inquiry is limited to questions of jurisdiction; and the writ cannot be invoked for the purpose of reviewing the correctness of acts of courts or officers who were acting within their jurisdiction.

It is a rule of criminal procedure in this state (section 11088, C. L. 1913) that “neither a departure from the form or mode prescribed * * * in respect to any pleadings or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant or tended to his prejudice, in respect to a substantial right.”

A defendant sentenced to imprisonment, who, after perfecting an appeal from the judgment of conviction, obtains a stay of execution and is permitted to remain at liberty pending the appeal, is not entitled to be discharged on habeas corpus because the trial court, in granting the stay, at the invitation of the defendant, erroneously accepted an improper or insufficient bail bond.

Original application by Anna Cook for a writ of habeas corpus to be directed to John C. Ross, Sheriff of Cass County. Writ denied.

See, also, 208 N. W. 556.

Wood & Breaw, of Fargo, for petitioner.

H. F. Horner, State's Atty., and V. R. Lovell, Asst. State's Atty., both of Fargo, and Geo. F. Shafer, Atty. Gen., for respondents.

CHRISTIANSON, C. J.

This is an original application for a writ of habeas corpus, which was presented to this court after a denial of the application by Hon. A. T. Cole, one of the judges of the First judicial district.

The undisputed facts in the case are as follows: A criminal complaint was filed against the defendant in justice's court in Cass county, and such proceedings were had that on July 23, 1923, an order was made by J. K. Bingham, justice of the peace, to the effect that the said defendant “be held to answer upon a charge of bootlegging,” and that defendant be admitted to bail in the sum of $1,000. Defendant furnished a bail bond, executed by herself and two sureties. The bond was conditioned:

“That the above-named Anna Cook will appear and answer the charge above mentioned in whatever court it may be presented, and will at all times hold himself amenable to the orders and process of the court, and if convicted will appear for judgment and render himself in execution thereof; if he fails to perform either of these conditions that he will pay to the state of North Dakota the sum of $1,000.”

Thereafter an information was filed in the district court of Cass county charging the defendant with the crime of bootlegging. A trial was had, and on December 18, 1923, the jury returned a verdict finding the defendant guilty of the crime of bootlegging. On the 21st day of December, 1923, the defendant was sentenced, pursuant to the verdict, by the Honorable Charles M. Cooley, the presiding judge of said court, to imprisonment in the Cass county jail for a term of 90 days, and to pay a fine of $200, and, in default in the payment of fine, imprisonment for an additional period of 100 days. On the same day that sentence was pronounced, defendant duly perfected an appeal from the judgment of conviction, by serving and filing a notice of appeal. And on that day the presiding judge, upon application of defendant's attorney, made and entered the following certificate:

“State of North Dakota, County of Cass-ss.:

In District Court, First Judicial District.

State of North Dakota, Plaintiff, v. Anna Cook, Defendant.

Certificate of Probable Cause of Appeal.

This certifies that a notice of appeal has been taken by the defendant in the above-entitled action to the Supreme Court from the judgment of the district court herein and notice of appeal filed in the office of the clerk of this court and due service thereof made upon the state's attorney of Cass county, N. D., and that in my opinion there is probable cause for the appeal, and that a continuing bail bond has been filed herein.

Given under my hand this 21st day of December, A. D. 1923. Chas. M. Cooley,

District Judge, First Judicial District,

Cass County, North Dakota.”

By virtue of the proceedings so had in, and the certificate made by, the district court, defendant was permitted to remain at liberty pending the appeal. On March 12, 1926, the judgment of conviction was affirmed by this court, and, upon remand of the case to the district court, defendant was apprehended and taken into custody. She thereupon applied to the Honorable A. T. Cole, one of the judges of the First judicial district, for a writ of habeas corpus. The writ was refused,and thereupon an application for such writ was made to this court.

The relator bases her application upon the following statutory provisions:

“The term of imprisonment fixed by the judgment in a criminal action commences to run only from the time of the sentence of the defendant; but if thereafter, during such term, the defendant escapes or by any legal means is temporarily released from such imprisonment and subsequently returned thereto the time during which he was at large must not be computed as part of such term.” Section 10349, C. L. 1913.

“If the judgment is imprisonment, or a fine and imprisonment until such fine is paid, the defendant must forthwith be committed to the custody of the proper officer, and by him detained until the judgment is complied with.” Section 10963, C. L. 1913.

“An appeal to the Supreme Court from a judgment of conviction, stays the execution of the judgment in all capital cases, and in all other cases upon filing with the clerk of the district court of the county in which the conviction was had, a certificate of the judge who presided at the trial, or of a judge of the Supreme Court that in his opinion there is probable cause for the appeal, but not otherwise, except as hereinafter provided.” Section 10999, C. L. 1913.

“An appeal taken by the defendant does not stay the execution of the judgment in any case not capital, unless bail is put in, except when the judgment is imprisonment in the penitentiary, and an appeal is taken during the term at which the judgment is rendered, and the defendant is unable to give bail, and that fact is satisfactorily shown to the court, it may, in its discretion, order the sheriff or other officer having the defendant in custody, to detain him in custody without taking him to the penitentiary, to abide the judgment on appeal, if the defendant desires it.” Section 11005, C. L. 1913.

“If the offense is bailable the defendant may be admitted to bail * * * after conviction: * * *

2. If a judgment of imprisonment has been given, that he...