Department Public Welfare v. Polsgrove

• Decision Date: 04 October 1932
• Citation: 245 Ky. 159
• Court: United States State Supreme Court — District of Kentucky
• Parties: Department of Public Welfare of Kentucky v. Polsgrove, County Judge.

245 Ky. 159

Department of Public Welfare of Kentucky v. Polsgrove, County Judge.

Court of Appeals of Kentucky.

Decided October 4, 1932.

1. Criminal Law. — Sentence of defendants, pleading guilty of robbery, to confinement in penitentiary for 12 years, as authorized for malicious assault with weapon, with intent to rob, instead of

maximum term of 10 years, held reversible error (Ky. Stats., secs. 1159, 1160).

2. Courts. — Court of Appeals has jurisdiction to prevent discharge on habeas corpus of prisoners lawfully confined in penitentiary by issuing writs of prohibition (Constitution, sec. 110).

3. Prohibition. — County judge's jurisdiction of habeas corpus proceedings does not defeat Court of Appeals' jurisdiction to prevent erroneous issuance of such writ by granting writ of prohibition, where great and irreparable injury, such as discharge of criminals lawfully incarcerated, would result, and there is no adequate remedy by appeal (Constitution, sec. 110).

4. Habeas Corpus. — No appeal lies from decision on writ of habeas corpus.

5. Criminal Law. — Sentence on conviction of robbery to imprisonment in penitentiary for longer than maximum statutory term held avoidable only as to excess, where defendants failed to appeal (Ky. Stats., sec. 1159).

In Court of Appeals.

BAILEY P. WOOTTON, Attorney General, and W.R. ATTKISSON, Assistant Attorney General, for plaintiff.

W.C. MARSHALL for defendant.

OPINION OF THE COURT BY JUDGE WILLIS.

Granting writ.

This proceeding presents interesting and important questions of substantive and procedural law. The first concerns the propriety of a writ of prohibition to an inferior court, and the second relates to the legal effect of a sentence in excess of the statutory penalty. The state of facts out of which they arise is somewhat novel. James Rynol, Jack Ross, Frank Dunleavy, and Henry Anderson were indicted in the Hart circuit court for the crime of robbery. The several defendants entered a plea of guilty, and the circuit court instructed the jury to fix the punishment of each at confinement in the penitentiary for not less than five, nor more than twenty years. The verdict of the jury and the judgment of the court fixed the punishment of each defendant at confinement in the penitentiary for a term of twelve years. No appeal was taken from the judgment, and each defendant began serving his sentence in the Frankfort penitentiary. In August of this year the four prisoners filed a petition in the Franklin county court to obtain a writ of habeas corpus to test the legality of their confinement. The county judge was about to discharge the prisoners when the present original action was instituted in this court to obtain a writ of prohibition against the county judge to prevent such action on his part. A temporary writ was issued pending the hearing, and the case is now submitted for final determination. The position of the prisoners is that the judgment of conviction was void because it inflicted a term of imprisonment beyond the utmost period authorized by statute for the offense committed. The punishment for robbery is fixed at confinement in the penitentiary for not less than two, nor more than ten, years (section 1159, Ky. Stats.), whilst that for a malicious assault with a weapon with intent to rob is fixed at confinement for not less than five, nor more than twenty years. Section 1160, Ky. Stats. The circuit court applied the wrong statute, which constituted a reversible error (Durham v. Com., 241 Ky. 612, 44 S. W. [2d] 557), but which was not called to the attention of the trial court or corrected by appeal in the manner provided by law. The convicts also contend that the county judge has jurisdiction of the action for a writ of habeas corpus, and that this court has no power to control his conduct in such a situation.

1. It may not be doubted that this court has jurisdiction to prevent the discharge on habeas corpus of prisoners lawfully confined in the penitentiary. The Constitution (section 110)...