Dowd v. Todd

• Decision Date: 23 July 1962
• Docket Number: No. 30079,30079
• Parties: Alfred F. DOWD, as Warden of the Indiana State Prison, Appellant, v. Carl Lindley TODD, Appellee.
• Court: Indiana Supreme Court

Page 4

184 N.E.2d 4

243 Ind. 232

Alfred F. DOWD, as Warden of the Indiana State Prison, Appellant, v. Carl Lindley TODD, Appellee.

No. 30079.

Supreme Court of Indiana.

July 23, 1962.

Edwin K. Steers, Atty. Gen., Richard C. Johnson, Deputy Atty. Gen., Indianapolis, for appellant.

Robert S. Baker, Public Defender, Thomas A. Hoadley, Deputy Public Defender, Indianapolis, for appellee.

ACHOR, Judge.

The appellee brought an action for writ of habeas corpus against the Warden of the Indiana state prison in the Superior Court of LaPorte County, claiming that the judgment under which he was committed was void, and that the Criminal Court Division Two of Marion County had no jurisdiction to enter the sentence which was imposed upon him. The LaPorte Circuit Court granted the writ of habeas corpus, from which judgment this appeal is taken by the Warden.

It appears from the record that the prisoner was tried and convicted on two counts, one for auto banditry, which carried a determinate sentence of ten to twenty-five years, and another on a county of robbery, which carried an indeterminate sentence of ten to twenty-five years.

In Mims et al. v. State (1957), 236 Ind. 439, 140 N.E.2d 878, in a similar situation on an appeal from a conviction on two counts, one of which was included in the other, we held that the court erred in sentencing the defendant on two counts. We held further that a judgment should be entered and that the defendant should be sentenced on the greater offense only. We did not hold in that case, as appellee here urges, that the judgment was void in that the court lacked jurisdiction to impose the erroneous sentence.

The appellant in this appeal points out that the statute of thst state provides:

'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:

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'Second. Upon any process issued on any final judgment of a court of competent jurisdiction.' Burns' § 3-1918, 1946 Repl.

It has long been the law in this state, as well as all other jurisdictions, that courts of coordinate jurisdiction do not have the power to review or correct the errors of each other in a habeas corpus proceeding. Judgments of such courts are final unless the error complained of is presented by a proper appeal to the reviewing court; the exception being that the erroneous action of the court is outside its lawful jurisdiction and, therefore, void.

The appellee relies entirely, so far as we can determine, upon the case of Witte v. Dowd, Warden (1951), 230 Ind. 485, 496, 497, 102 N.E.2d 630. An examination of that case reveals that it is of no help to the appellee. The court in that case gives a scholarly review of the history of the writ of habeas corpus. The opinion states the proposition that habeas corpus is available to all persons restrained of their liberty by reason of void judgments. This discourse is coupled with an extended discussion as to what are void, as distinguished from merely voidable judgments. However, the court in the end affirmed the action of the trial court and denied the writ of habeas corpus. Therefore, statements made in the case, which were not material to the decision and upon which appellee here relies, were merely dicta.

In the above cited case, the LaPorte Circuit Court was asked to examine the final judgment of another trial court. In that case the trial court failed to enter a formal sentence of imprisonment for forgery before proceeding to sentence the appellant for life as an habitual criminal. The court held that the judgment was not void but merely erroneous and that the sentencing court had jurisdiction. The court in that opinion made the following comment:

'The trial court failed to enter a sentence of imprisonment for forgery before proceeding to sentence appellant to imprisonment for life [as an habitual criminal], but in our opinion this does not make the judgment void.

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'The failure to impose the sentence for forgery was an irregularity, but it did not deprive the trial court of jurisdiction to impose the sentence for life, and the judgment is not void and subject to a collateral attack by habeas corpus.' Witte v. Dowd, Warden, supra, pp. 496, 497, 102 N.E.2d pp. 635, 636.

All other matters commented upon in the Witte case, supra, and here relied upon by the appellee, as authority for the right of the LaPorte Circuit Court to go back of the judgment and examine and review the action of another trial court, can be regarded only as dicta, which had no application to the issue presented to the court in that case. The opinion therefore does not provide controlling precedent for the decision in the case at bar.

Far too frequently the term 'lack of jurisdiction' is loosely used and overworked as a catchall to support a desired remedy. From such a premise it is then argued that all actions of a court are 'void.' We cannot ascribe 'lack of jurisdiction' indiscriminately as a basis for achieving every remedy, however desirable.

In the case before us the court had general jurisdiction of the subject matter, namely, the crimes involved. The court also had jurisdiction of the party involved. Under no theory can it be urged that there was lack of jurisdiction in the Marion Criminal Court, Division Two, or that the judgment was void. At the most, it was contrary to law and therefore erroneous. This fact was recognized in the more recent case of Shoemaker v. Dowd, Warden (1953), 232 Ind. 602, 607, 115 N.E.2d 443, 446, which limits and criticizes the dicta in the Witte case, supra. In the Shoemaker case, in denying a writ of habeas corpus, this court stated:

'No appeal was taken by the appellant from the judgment of the Hamilton Circuit Court. Having failed to avail himself of this right, he cannot use the writ of habeas corpus for the purpose of an appeal.'

Furthermore, we must give consideration to the fact that since the case of Witte v. Dowd, Warden, (1951), supra, this court has promulgated Rule 2-40B, which provides as follows:

'Correction of Sentence. Whenever it shall appear from the indictment or affidavit and final judgment in any criminal cause that an erroneous sentence has been imposed by the trial court, the defendant in such cause may at any time petition the trial court to correct retroactively such judgment to conform to the term of imprisonment specified in the applicable statute upon proper notice (By serving a copy of the petition in person or by mail) upon the Prosecuting Attorney of the circuit and the Attorney General of Indiana. An appeal may be taken to the Supreme Court from a final order granting or denying said petition under the same rules and conditions as provided in rules 2-40 and 2-40A of this Court. Effective November 16, 1954.'

The result is, that the procedure approved in the Witte case, supra, and here relied upon by the appellee, has been nullified by the remedy afforded by the above rule, which expressly gives the appellee the right to apply to the court which sentenced him for a correction of the judgment. It also provides for an appeal from any denial of such petition.

It appear to us that the appellee here has been erroneously sentenced for the lesser included offense of robberty, and should have been sentenced on the conviction of auto banditry only. It also appears that appellee's remedy is to make application pursuant to Rule 2-40B, supra, to the Marion Criminal Court, Division Two, for correction of this apparent error, which we have reason to believe, in view of the decision of this court in Mims et al. v. State, supra, 236 Ind. 439, 140 N.E.2d 878, will be granted promptly.

The judgment of the LaPorte Circuit Court is reversed, with directions to sustain the motion to quash the writ herein.

ARTERBURN, C. J., and LANDIS, J., concur.

BOBBITT, J., not participating.

JACKSON, J., dissents with opinion.

JACKSON, Judge (dissenting).

This is an appeal by the Warden of the Indiana State Prison from the judgment of the Superior Court of LaPorte County, discharging appellee from the Indiana State Prison.

The record discloses that an indictment in two counts was filed against appellee and another in the Criminal Court of Marion County, Indiana, Division Two, in cause No. CR 7136-Z. Count one of said indictment charged appellee with the offense of robbery; and county two thereof charged appellee with the crime of automobile banditry.

Trial was by jury, resulting in verdicts of guilty on both counts. In view of the issues in this case we set out both the verdicts and the judgment entered thereon. The verdict is as follows:

'We the Jury, find the defendant, Carl Linley [Lindley] Todd, guilty of automobile banditry as charged in the second count of the indictment that his age is unknown and that he be imprisoned for Ten Years.

'A. C. Steen, Foreman

'We, the jury, find the defendant, Carl Linley [Lindley] Todd, guilty of robbery as charged in the first count of the indictment and that he be disfranchised and rendered incapable of holding any office of trust or profit for the period of 10 years and we further find that the age of the defendant is unknown.

A. C. Steen, Foreman.'

The trial court entered judgment on the verdicts as follows:

'And on the verdicts of the jury the Court finds that the defendant, Carl Linly [Lindley] Todd, is guilty of the crime of robbery and the crime of automobile banditry all as charged in the Indictment; that his true age is 36 years; that the defendant, Carl Linly [Lindley] Todd, should be imprisoned in the Indiana State Prison for ten years for the crime of automobile banditry; that the defendant, Carl Linly [Lindley] Todd, should be imprisoned in the Indiana State Prison for not less than ten years nor more than 25 years for the crime of robbery and for said crime of robbery defendant, Carl Linley [Lindley] Todd, should be...