Ex parte Burden

• Decision Date: 16 December 1907
• Docket Number: 13016
• Citation: 92 Miss. 14,45 So. 1
• Court: Mississippi Supreme Court
• Parties: EX PARTE CHESTER BURDEN

45 So. 1

92 Miss. 14

EX PARTE CHESTER BURDEN

No. 13016

Supreme Court of Mississippi

December 16, 1907

FROM the judgment of HON. G. GARLAND LYELL, Chancellor, on habeas corpus, admitting Chester Burden to bail.

Burden the relator, was indicted by the grand jury of, first district, Hinds county, for "an assault and battery with intent and in the attempt to kill and murder;" the jury which tried him in the circuit court found him "guilty of assault and battery with intent to commit manslaughter."

The circuit court sentenced him to the penitentiary, treating the verdict as a conviction of felony. The relator appealed to the supreme court, pending which he sued out a writ of habeas corpus before the chancellor, claiming that the verdict was a nullity, or at most a conviction of a misdemeanor, and that he was entitled to bail pending the appeal. The chancellor granted bail and the state appealed to the supreme court.

Decree affirmed.

R. V Fletcher, attorney general, for appellant.

Burden was indicted for assault and battery with intent to kill and murder and the jury brought in a verdict finding him guilty of assault and battery with intent to commit manslaughter. Thereupon the trial court sentenced him to the penitentiary treating the verdict as a conviction for a felonious assault. Burden took an appeal to the supreme court. Pending this appeal, he sued out a writ of habeas corpus before the chancellor, alleging that the conviction was a nullity or at most was good as a conviction for simple assault and battery and that he was entitled to bail pending appeal as of right. The chancellor adopted this latter view and admitted relator to bail, fixing the amount at $ 1,000. The condition of the bond is that he appear before the supreme court, and answer to its judgment, if the case be affirmed, or appear before the circuit court of Hinds county at its next term, should the case be reversed, and abide such lawful sentence for assault and battery as that court may impose. From this decree, the state appeals. Relator doubtless relies upon the cases of Morman v. State, 24 Miss. 55; Gibson v State, 38 Miss. 310, and Bedell v. State, 50 Miss. 492. The Morman case was decided under Hutchinson's Code by the terms of which the offense of assault with intent to kill and murder was one offense with a ten year penitentiary sentence as the maximum and assault with intent to commit manslaughter was another and distinct offense with a five year penitentiary sentence as the maximum. In this state of the law, the court held that attempt to commit manslaughter was not included as a constituent of attempt to murder, and that upon an indictment for attempted murder, the prisoner could not be convicted of assault to commit manslaughter. The Code of 1857 seems to have omitted altogether any statute defining the crime of attempted manslaughter and in this condition of the statute the Gibson case was decided. This case held properly enough that since no statute defined an attempt to commit manslaughter as a distinct crime then a verdict of such attempt must be construed as a conviction of simple assault and battery. But by Code 1871, § 2497, the statute was changed and it was made a felony to attempt to commit manslaughter, as well as to attempt to commit murder. However this statute left it discretionary with the trial court whether upon conviction for such offense, a penitentiary sentence or a jail sentence should be imposed. Under this statute the Bedell case was decided. The chancellor's decision is not supported by either the Morman case or the Gibson case. For the Morman case held that a defendant indicted for attempt to murder could not be convicted of attempt to commit manslaughter since the two offenses are by statute separate and disinct. The Gibson case was not authority since there had occurred the radical change in the statute. I submit, therefore, that there may be some very serious doubt as to the soundness of the Bedell case. Now the Code 1906, § 1043, clearly makes it a felony to commit the crime of assault and battery in the attempt to commit manslaughter. So that no question could arise as to the right of the state to indict a man for assault and battery in the attempt to commit manslaughter, and upon conviction on such a charge, he could be sentenced to the penitentiary. So that the only question in this aspect of the case is as to whether upon an indictment for assault to murder, the jury is warranted in finding the defendant guilty of assault to commit manslaughter, or whether that offense would have to be charged in a separate and distinct indictment. It is not my purpose at this time to argue at length the question of whether the circuit judge in passing sentence on this relator did not misjudge the law. That question will be heard and determined when the case reaches the court on appeal. But I have thus briefly reviewed the course of legislation and decision for the purpose of showing, if possible, that the question of the circuit judge's action is at least open to debate, and that in sentencing the prisoner to the penitentiary on the verdict rendered, there was no clear and palpable violation of a positive and specific statute, but that the error, if any has indeed been committed, was at most simply in error in construing a verdict, which is open to serious question as to its real effect. The question therefore before this court is as to whether the judgment of the circuit court is absolutely void or whether at most it is merely voidable and such an error as can be corrected only by appeal.

The general rule distinguishing the functions of writs of error and of habeas corpus has thus been dearly stated: "There can be no controversy as to the soundness of the doctrine that 'errors or irregularities in proceedings behind the judgment can not be inquired into on habeas corpus and that the writ of habeas corpus was never designed to be a writ of error, by which to revise final judgment.' The difficulty arises, not in the statement of the general rule, but in its application to particular cases. Mere reversible error will not be examined into on habeas corpus, and the party must be driven to his direct appeal, the proper mode for the rectification of irregularities. But for incurable, radical, fatal defects, plainly and indisputably manifest in the record, relief should be granted, even on habeas corpus. Scott v. State, 70 Miss. 247, 11 So. 657.

In the case last cited the relator had been tried by eleven men instead of twelve, and the court held that there had been no trial at all; that no verdict at all had been rendered, and that all the proceedings were a nullity. But here there was a lawful trial, and the only quarrel with the circuit court is an alleged failure to pronounce the proper sentence upon the verdict.

The true rule has thus been again stated by our court: "Judgments of courts are disregarded and held for nothing where the court passing the sentence had no jurisidction over the subject-matter or over the person sentenced; but where jurisdiction is obtained the judgment rendered is conclusive, except upon appeal. Justices of the peace have jurisdiction to try any and all misdemeanors, of whatsoever character, and the complaint here made is not of jurisdiction, but of the insufficient charges against Grubbs, and this complaint cannot be examined into upon a writ of habeas corpus. One of the charges tried by the justice of the peace was for exhibiting concealed weapons which imports no crime whatever, and the manifest and painful unfamiliarity of the justice of the peace with the forms of charging crimes would have justified him in refusing to try the case and of binding the offender to the circuit court for trial; but he had jurisdiction of the crime intended to be charged, and having tried and passed sentence, his judgment must be conclusively taken to be correct, for, having full jurisdiction of the crime and over the offender, his judgment can not be attacked collaterally in a proceedings like this. The petitioner not having insisted on his right before the justice of the peace, his only other remedy is by an appeal of his several convictions to the circuit court. The writ of habeas corpus furnishes no redress for the matters here complained of. Freem. on Judgments, ch. 29; Church on Hab. Corp., ch. 24; Emanuel v. State, 36 Miss. 627." Ex parte Grubbs, 79 Miss. 358, 30 So. 708; Ex parte Smith, 79 Miss. 373, 30 So. 110; Ex parte Burke, 58 Miss. 50.

I call the special attention of the court to the exhaustive treatment of this question as contained in 15 Am. & Eng. Ency. Law (2d ed.) 170, 1-3 et seq. On these pages the whole question is treated with abundant citation of authority. See also 21 Cyc., 285, as to exclusiveness of remedy by appeal.

In Ex parte Mooney, 53 Am. Rep., 59, relator, who had been convicted of an offense similar to the one in the case at bar was given both a penitentiary sentence and a fine. Upon a habeas corpus proceeding, it was contended that the court was without power to impose both. In reviewing this case, the supreme court of West Virginia uses this language:

"Whether or not this is the true interpretation of the statute (referring to the contention that both forms of punishment could not be imposed) it is unnecessary and perhaps improper to decide in this proceeding, as it is not the only construction that can by any possibility be given to it, and the proper mode of having it construed is by writ of error to said judgment and not by this collateral proceeding."

Here is my contention in a nut shell. The sentence in this case is not incorrect by any clear and unmistakable provision of a statute. According to one view of the matter as I have tried to show in the first part of this brief,...