Davidson v. Nygaard

• Citation: 48 N.W.2d 578,78 N.D. 141
• Decision Date: 05 June 1951
• Docket Number: No. 235,235
• Parties: DAVIDSON v. NYGAARD. Crim.
• Court: United States State Supreme Court of North Dakota

Page 578

48 N.W.2d 578

78 N.D. 141

DAVIDSON v. NYGAARD.

Crim. No. 235.

Supreme Court of North Dakota.

June 5, 1951.

Syllabus by the Court.

1. 'A writ of habeas corpus cannot be utilized as a substitute for an appeal. Where relief is sought from a criminal judgment the scope of inquiry on habeas corpus is limited to questions of jurisdiction and we inquire into the correctness of the acts of the trial court only to the extent of determining whether it acted within its jurisdiction.' Mazakahomni, Petitioner v. State of North Dakota, 75 N.D. 73, 25 N.W.2d 172.

2. When every material fact and essential ingredient of the charge made is stated in the body of an information it is immaterial whether or not the charge is properly named in the caption or formal part thereof. The charge depends on the facts alleged.

3. The sentence orally pronounced upon a defendant under Sec. 29-2615, NDRC 1943 constitutes the judgment of the court in a criminal case. If the written sentence subsequently entered conflicts therewith the oral pronouncement governs.

4. In determining the validity of a judgment in a criminal action the entire record will be searched and all parts of the record interpreted together. A deficiency in one place may be cured by what appears in another.

5. If two constructions of a judgment are possible that one which maintains the jurisdiction of the court and gives effect to the intent of the judge who imposed it must be preferred.

Wm. R. Mills, Bismark, for petitioner.

E. T. Christianson, Atty. Gen., for the State.

Clair M. Ghylin, Special Asst. Atty. Gen., for respondent.

GRIMSON, Judge.

Ivan Davidson has petitioned this court for a writ of habeas corpus. He alleges in his petition that he is imprisoned and restrained of his liberty at the State Penitentiary at Bismarck, Burleigh County, North Dakota; that his application for habeas corpus has been denied by the District Court of Burleigh County; that the cause or pretense of such confinement or restraint is that he is held under a sentence by the District Court of Cass County for the 'crime of conviction of three or more felonies prior to this conviction of rape in the first degree on Jan. 7, 1948,' and that the imprisonment is illegal as there is no such crime either at common law or by statute. An order to show cause was issued upon said petition. The warden made his return attaching thereto a copy of an order denominated 'sentence' and a commitment issued out of the District Court in and for the County of Cass, State of North Dakota, on the 16th day of January 1948 by virtue of which he was holding and restraining the petitioner. A hearing was had. Upon that hearing the attorney general filed the transcript and files of the proceedings on sentence.

The scope of the inquiry upon an application for a writ of habeas corpus and the rules which must be applied in determining whether a writ of habeas corpus should issue is thoroughly discussed by Judge Christianson for the court in the case of Ryan v. Nygaard, 70 N.D. 687, 694, 297 N.W. 694, 700. The conclusion is reached that the writ of habeas corpus cannot be utilized as a substitute for an appeal or writ of error; that the inquiry is limited to questions of jurisdiction. State ex rel. Smith v. Lee, 53 N.D. 86, 205 N.W. 314; Cook v. State, 54 N.D. 178, 208 N.W. 977; In re Cook, 54 N.D. 193, 209 N.W. 231. "'To have jurisdiction is to have the power to inquire into the facts and apply the law.' * * * A court has jurisdiction of the cause when the laws of the sovereignty in which the tribunal exists grants it power over the subject-matter and to adjudge concerning the general question involved. 2 Bouvier's Law Dict. 1760; Hunt v. Hunt, 72 N.Y. 217, 28 Am.Rep. 129. * * * When a court has jurisdiction of a cause and of the parties, it does not lose jurisdiction because it makes a mistake in determining either the facts or the law, or both. Jurisdiction does not depend upon the correctness of the decision made." Reichert v. Turner, 62 N.D. 152, 157, 242 N.W. 308, 310.

Attacks on a judgment by habeas corpus are collateral. A judgment cannot be impeached for error or irregularity anterior to a judgment unless they amount to a lack of jurisdiction. Jurisdiction is ordinarily defined as the power to hear and determine. No mere error or irregularity in its exercise can ordinarily render a judgment null. See Secs. 1546, 1548, 1554, 3 Freeman on Judgments, pages 3172, 3179, and 3193. See also Mazakahomni, Petitioner v. State of North Dakota, 75 N.D. 73, 25 N.W.2d 172.

'Unless a judgment is an absolute nullity, imprisonment under it cannot be unlawful; and it is not a nullity, though erroneous, if the court has general jurisdiction, and, until reversed, cannot be disregarded.' 15 Am.Jur. Judgment and Sentence, Sec. 442, p. 102.

'Upon habeas corpus the court ordinarily will inquire no further than to determine whether the court had jurisdiction. The jurisdictional inquiry will extend to the question of the jurisdiction of the court over the person and the subject-matter, and to its power to make a particular order or judgment entered in the proceedings.' In re Solberg, 52 N.D. 518, 203 N.W. 898.

It appears that on Dec. 22, 1947, a criminal information was filed against the petitioner charging him with committing the crime of rape in the first degree. To that information he pleaded not guilty. A trial was had before a jury in Cass County and on January 7, 1948, petitioner was found guilty of rape in the first degree. No question is raised of the court's jurisdiction of the petitioner and of the rape prosecution. The petitioner was represented by counsel throughout all the proceedings.

On January 16, 1948, before sentence was passed upon his conviction for rape the state's attorney by leave of the court filed an information against the petitioner under the habitual criminal statute, Sec. 12-0623, NDRC 1943, which provides that: 'If at any time before judgment and sentence, * * * it shall appear that one convicted of a felony, previously has been convicted of crimes as set forth in sections * * * 12-0621 (3 or more times), the state's attorney of the county in which such conviction was had shall file an information with the court in which such conviction was had accusing such person of the previous convictions.'

In that information the state's attorney accused the petitioner of: 'Committing the crime of conviction of three or more felonies prior to his conviction of rape in the first degree on January 7, 1948 and charges that heretofore, towit: On the 7th. day of January 1948, in the County of Cass and State of North Dakota, the said defendant was duly convicted of the crime of rape in the first degree; that prior thereto, the said defendant was duly convicted on the 21st. day of June 1944 in the District Court of Cass County, North Dakota of the crime of burglary in the third degree and was sentenced to the State Penitentiary at Bismarck for a term of from three to five years; that prior thereto and on or about the 25th. day of October 1939, the said defendant was duly convicted of the crime of burglary in the District Court Griggs County, North Dakota, and was sentenced to the State Penitentiary at Bismarck for a term of ten years; that prior thereto and on or about the 25th. day of October, 1939, the said defendant was duly convicted of the crime of grand larceny and was duly sentenced to the State Penitentiary at Bismarck for a term of three years, to run concurrently with the prior sentence imposed on the same date; that prior thereto and on the 20th. day of June 1935, the said defendant was duly convicted in Wolf Point, Montana of the crime of burglary and was duly sentenced to the State Penitentiary at Deer Lodge Montana for a term of five years; that prior thereto and on or about the 21st. day of April 1932, the said defendant was duly convicted in the District Court of Foster County, North Dakota of the crime of burglary in the third degree and was duly sentenced to the State Penitentiary at Bismarck for a term of three to five years; that prior thereto the said defendant was on or about the 6th. day of June 1931 duly convicted of the crime of burglary in the third degree in the District Court of Griggs County, North Dakota and was duly sentenced to a term in the State Penitentiary at Bismarck of one year.'

Error is claimed because the state's attorney in the caption or formal part of that information accused the petitioner of 'committing the crime of conviction of three or more felonies.' It is true that phrase names no crime. It, however, is not a material part of the information. In ex parte Bailey, 60 Okl.Cr. 278, 64 P.2d 278, 280, it is held that 'The fact that the information designated the offense as the crime of 'being an habitual criminal' is immaterial, as the offense charged depends upon the facts alleged.' The statute, Sec. 12-0623, NDRC 1943, requires the state's attorney to file an information 'accusing such person of the previous convictions.' In the body of the information the state's attorney set the previous convictions out in detail. That is the material part of the information. 'The body or charge of an information is the substantial part thereof. It sets forth the offense and determines the character of the charge.' 42 C.J.S., Indictments and Informations, Sec. 81, p. 942. See also State v. Findling, 123 Minn. 413, 144 N.W. 142, 49 L.R.A., N.S., 449, 25 Am.Jur., Habitual Criminal, Sec. 26, p. 273.

This court has passed upon this matter in State v. Bossart, 62 N.D. 11, 17, 241 N.W. 78, 81. The formal part of the information charged the defendant with grand larceny. The jury found him guilty of grand larceny. A new trial was granted because the charging part of the information did not charge grand larceny. The charging part alleged that the goods stolen were of the value of $20. This court held: 'This is the important part of the information and it only charges...