Department of Public Welfare v. Polsgrove

• Decision Date: 03 October 1933
• Citation: 63 S.W.2d 603,250 Ky. 517
• Parties: DEPARTMENT OF PUBLIC WELFARE ET AL. v. POLSGROVE, COUNTY JUDGE.
• Court: Kentucky Court of Appeals

63 S.W.2d 603

250 Ky. 517

DEPARTMENT OF PUBLIC WELFARE ET AL. v. POLSGROVE, COUNTY JUDGE.

Court of Appeals of Kentucky

October 3, 1933

Appeal from Circuit Court, Franklin County.

Application by the Department of Public Welfare and another for writ of prohibition to prevent James H. Polsgrove, County Judge of Franklin county, from discharging Carl Gray from the reformatory on habeas corpus.

Writ awarded.

Bailey P. Wootton, Atty. Gen., and H. Hamilton Rice, Asst. Atty Gen., for appellants.

B. T Quinn, of Frankfort, for appellee.

RICHARDSON Justice.

This is an application by the members of the department of public welfare of Kentucky and the superintendent of the state reformatory, at Frankfort, for a writ of prohibition to prevent the judge of the Franklin county court from discharging, on habeas corpus, Carl Gray, who is confined in the reformatory under an indictment, trial, judgment, and sentence of the Nelson circuit court.

At the February term, 1932, Gray, Humphrey Lynch, Fred Withers Daniel Pershing (alias Daniel O'Brien), Robert Davenport and W. S. Robinson were jointly indicted, accused of "the crime of unlawfully and feloniously entering into a conspiracy with each other to commit the crime of robbery committed, in manner and form as follows, to-wit:

That they 'did unlawfully, willfully and feloniously enter into a conspiracy with each other, and each with the other to rob the People's Bank of New Hope, Ky. a Bank, doing a banking business at New Hope, Ky. and while said conspiracy was in existence and in pursuance of same and in furtherance of the execution of same, did band themselves together and go forth armed and acting in concert with each other, aiding, abetting and assisting each in pursuance of said conspiracy and did with force and arms and violence put in fear of bodily harm and in fear of his life, one Tom Miller, the said Tom Miller being the Cashier of the said People's Bank of New Hope and in actual charge and in legal custody of the money of said bank, and did rob from him, with force and arms, against his will and consent the sum of eleven hundred and eighty dollars lawful money, legal tender of the United States, in currency and silver * * * with the felonious and fraudulent intention of converting same to their own use and permanent benefit, and permanently depriving the said bank of its property therein. * * *' "

Gray, without demurring to the indictment, entered a plea of guilty, and on submission of the prosecution as to him, a jury, acting under a peremptory instruction, returned a verdict fixing his punishment at six years in the penitentiary. He was formally sentenced, and, under a proper order, committed to the reformatory at Frankfort, where he has since been confined. Humphrey Lynch, a codefendant of Gray, entered a demurrer to the indictment. It was overruled, and the prosecution, with the intervention of a jury, proceeded to trial as to him, resulting in a judgment of conviction. He prosecuted an appeal to this court. We determined that the indictment was defective in that it charged a conspiracy to commit robbery in the accusatory part, and a conspiracy to commit bank robbery in the descriptive portion. The judgment of conviction of Lynch was reversed, with directions to award him a new trial.

Gray filed a petition for a writ of habeas corpus before the county judge of Franklin county, and to prohibit him from granting it, and discharging Gray, this proceeding for a writ of prohibition was instituted.

It is very clear that the indictment attacked by the petition for a writ of habeas corpus states a public offense cognizable by the law, though stated defectively, and, for this reason, demurrable. The insufficiency of the indictment was properly raised by Lynch in the circuit court, and also in this court, in the manner prescribed by law. To avail himself of the defects or the insufficiency of the indictment, the exclusive remedy of Gray was a demurrer in the circuit court, and, in case of an adverse ruling thereon, an appeal to this court. Baldridge v. Com., 88 S.W. 1076, 28 Ky. Law Rep. 33; Cheek v. Com., 162 Ky. 56, 171 S.W. 998; Daniels v. Com., 181 Ky. 365, 205 S.W. 968; Hawks v. Com., 197 Ky. 196, 246 S.W. 116; Rogers v. Com., 188 Ky. 817, 224 S.W. 348; Bailey v. Com., 198 Ky. 629, 249 S.W. 779. A contrary rule obtains where the indictment fails to charge an offense known to the law. Morgan v. Com., 202 Ky. 211, 259 S.W. 46; Pierce v. Com., 210 Ky. 465, 276 S.W. 135; English v. Com., 216 Ky. 608, 288 S.W. 320.

The indictment having charged Gray with a public offense, cognizable by the law, and the circuit court admittedly having jurisdiction of the offense and of the person of Gray, he is not now entitled by a habeas corpus to inquire into the sufficiency of the indictment and present technical defects, and thus procure his discharge under the judgment of conviction. Cooley on Constitutional Limitations (4th Ed.) page 424, aptly states the universal rule controlling the courts when determining the right of one convicted under a judgment of a court to a discharge by a habeas corpus. He states: "Where the party is confined under judicial process, is brought up on habeas corpus, the court or judge before whom it is returned will inquire, (1) whether the court or officer issuing the process, under which he is detained, had jurisdiction on issuing such process. If so, mere irregularities or errors of judgment in the exercise of the jurisdiction, must be disregarded on this writ, and must be corrected either by the court issuing the process or in regular appellate proceedings."

Mr Cooley's statement is universally accepted as the correct one. It has been approved and followed by the Supreme Court of the United States and the courts of the several states. See In re Coy, 127 U.S. 731, 8 S.Ct. 1263, 32 L.Ed. 274; Harlan v. McGourin, 218 U.S. 442, 31 S.Ct. 44, 54 L.Ed. 1101, 21 Ann.Cas. 849; Ex parte Lennon, 166 U.S. 548, 17 S.Ct. 658, 41 L.Ed. 1110; Bessette v. W. B. Conkey Co., 194 U.S. 324, 24 S.Ct. 665, 48 L.Ed. 997; Fitzgerald v. Green (In re Green), 134 U.S. 377, 10 S.Ct. 586, 33 L.Ed. 951; Glasgow v. Moyer, 225 U.S. 420, 32 S.Ct. 753, 56 L.Ed. 1147; In re Metzger, 5 How. 176, 12 L.Ed. 104; Ex parte Watkins, 3 Pet. 193, 7 L.Ed. 650; In re Swan, 150 U.S. 637, 14 S.Ct. 225, 37 L.Ed. 1207; Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969; Henry v. Henkel, 235 U.S. 219, 35 S.Ct. 54, 59 L.Ed. 203; Ex parte Parks, 93 U.S. 18, 23 L.Ed. 787; Hallinger v. Davis, 146 U.S. 314, 13 S.Ct. 105, 36 L.Ed. 986; Ex parte Bigelow, 113 U.S. 328, 5 S.Ct. 542, 28 L.Ed. 1005; Knewel v. Egan, 268 U.S. 442, 45 S.Ct. 522, 69 L.Ed. 1036; Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274; In re Clarke, 100 U.S. 399, 25 L.Ed. 715; Goto v. Lane, 265 U.S. 393, 44 S.Ct. 525, 68 L.Ed. 1070; In re Brown, 102 Cal.App. 97, 282 P. 538; Johnson v. State, 99 Fla. 1311, 128 So. 853; Smith v. Hollowell, 209 Iowa 781, 229 N.W. 191; Ex parte Prock, 46 Okl. Cr. 239, 287 P. 1091; Ex parte Amos, 94 Fla. 1028, 114 So. 760; Hallway v. Byers, 205 Iowa 936, 218 N.W. 905; Ex parte Stambaugh, 117 Cal.App. 659, 4 P.2d 270; Ex parte Lowe, 50 Idaho 602, 298 P. 940; People ex rel. Rich v. Lackey, 139 Misc. 42, 248 N.Y.S. 561; D'Allessandro v. Tippins, 101 Fla. 1275, 133 So. 332; Godfree v. Peak, 58 App. D. C. 364, 30 F.2d 988; Ex parte King, 41 Okl. Cr. 241, 272 P. 389; Reffkin v....