Dinkla v. Miles

• Decision Date: 24 January 1934
• Docket Number: No. 25996.,25996.
• Parties: DINKLA v. MILES.
• Court: Indiana Supreme Court

206 Ind. 124

188 N.E. 577

DINKLA

v.MILES.

No. 25996.

Supreme Court of Indiana.

Jan. 24, 1934.

Appeal from Madison Circuit Court; Carl F. Morrow, Judge.

Habeas corpus proceeding by Garrett Dinkla against Andrew F. Miles, as Superintendent of the Indiana Reformatory. The writ of habeas corpus was quashed on motion, and judgment entered remanding the petitioner to the custody of the defendant, and the petitioner appeals.

Judgment affirmed.

T. Ernest Maholm, of Indianapolis, for appellant.

James M. Ogden, Atty. Gen., and Merle M. Wall, Sp. Asst. Atty. Gen., for appellee.

MYERS, Judge.

Appellant petitioned the Madison circuit court for a writ of habeas corpus, stating, in substance, that he is unlawfully restrained of his liberty by one A. F. Miles, as superintendent of the Indiana Reformatory; that the cause of his imprisonment and restraint, as he has reason to believe, is by virtue of a purported “void warrant of commitment issued” by the Hendricks circuit court upon a verdict of a jury and judgment of the court that he was guilty of bank robbery; that the term of his imprisonment, twelve years, has not expired; that the reason for his belief of unlawful restraint is that the Honorable Zimri Dugan was the sole judge of the Hendricks circuit court from whom appellant obtained a change of venue, and that the Honorable Horace Hanna, a practicing attorney of the Hendricks county bar, was appointed special judge before whom, and a jury selected from persons called by a special venire to act as jurors, he was tried for the alleged offense in a room adjoining the regular court room in the Hendricks county courthouse; that during the entire time of the trial beginning November 18th, at the time the jury returned its verdict finding him guilty, November 19th, and at the time, November 20th, the judgment and sentence was pronounced by the special judge, the Hendricks circuit court was in session with the duly elected judge of that court on the bench, the regular elected and appointed officers and bailiffs in attendance upon a jury trial continuously in progress in the room of the courthouse set apart for trials. Appellant refused to make an opening statement to the jury and offered no evidence in his defense.

The writ was issued, and, on motion of the Attorney General, it was quashed. The petitioner refused to plead further, and judgment followed remanding petitioner to the custody of the defendant. An appeal to this court was perfected, and the sustaining of appellee's motion to quash the writ is here assigned as error, for the alleged reason, as a part of the assignment, that the action of the court contravenes the due process clause of our state and Federal Constitutions (Const. Ind. art. 1, § 12; Const. U. S. Amend. 14).

Appellant's various contentions in the court below and here may be combined into the proposition that no more than one Hendricks circuit court with one judge presiding may be in session at the same time, and therefore the judgment and sentence of appellant was not rendered by any court known to the law, and hence he should be discharged. The motion to quash the writ tested the sufficiency of the complaint whereon the writ was issued.

The special judge appears to have been duly appointed, qualified, and to have assumed jurisdiction of the case in the Hendricks circuit court. As to that particular case, he had all the powers of the regular judge. Shugart v. Miles, 125 Ind. 445, 449, 25 N. E. 551.

The jurisdiction of the Hendricks circuit court or of the special judge over the subject-matter-bank robbery-and of the person of appellant is not questioned, nor does appellant contend or make it appear that the judgment imprisoning him, on its face, is void and not merely erroneous. If it is erroneous, the law in this jurisdiction is well settled that “the writ of habeas corpus cannot be used as a writ for the correction of mere errors in the judgment.” Willis v. Bayles, 105 Ind. 363, 368, 5 N. E. 8, 11;Ryan v. Rhodes, 167 Ind. 121, 76 N. E. 249, 78 N. E. 330.

Since the circumstances upon which appellant relies to support the writ do not appear on the face of the judgment or even in the proceedings resulting in the judgment, such judgment may be erroneous, but it is not void and therefore not subject to a collateral attack, which is the remedy chosen by appellant in this case. Hunnicutt v. Frauhiger, 199 Ind. 501, 158 N. E. 572.

The complaint in the instant case alleges facts dehors the record, which would be proper allegations were this a direct attack on the judgment of the Hendricks circuit court in an action brought in that court. This court has a number of times in the past and we again call attention to the statute, section 3-1918, Burns' 1933; Acts 1881 (Sp. Sess.), c. 38, § 790, p. 240, which provides that “no court or judge shall inquire into the legality of any judgment or process whereby the party is in custody, or discharge him when the term of commitment has not expired, in either of the cases following: *** Second. Upon any process issued on any final judgment of a court of competent jurisdiction.” Hence, the only inquiry permissible in this case is: Was the petitioner in custody upon such process? The facts stated by appellant in his complaint answer this question in the affirmative. Since we have concluded that the process issued by the Hendricks circuit court whereby appellant...