Ex Parte Cica Et Al.

• Decision Date: 23 December 1913
• Parties: EX PARTE CICA ET AL.
• Court: New Mexico Supreme Court

18 N.M. 452

137 P. 598

EX PARTE CICA ET AL.

Supreme Court of New Mexico.

Dec. 23, 1913.

Syllabus by the Court.

The writ of habeas corpus is not a writ of error, nor does it, except when perverted, discharge the functions of a writ of error.

Errors or irregularities in the course of the proceedings at or anterior to the trial, which, if presented to an appellate court by way of appeal or writ of error, must necessarily result in the reversal of the judgment, are not sufficient, for that reason, as grounds for the release of a prisoner upon application for a writ of habeas corpus.

As to jurisdictional questions, a judgment under which the prisoner is held is aided by the same presumptions as in other cases of collateral assault. If the record is silent as to jurisdictional facts, jurisdiction is presumed.

A sentence is legal so far as it is within the provisions of law and the jurisdiction of the court over the person and the offense, and only void as to the excess, when such excess is separable and may be dealt with without disturbing the valid portion of the sentence.

Application of Joe Cica and another for a writ of habeas corpus. Writ denied.

This was a petition for a writ of habeas corpus. The petitioners allege that: On the 18th day of November, 1913, a complaint was filed before J. M. Gauna, a justice of the peace in precinct No. 20 of Colfax county, attempting to charge an offense against the petitioners under a city ordinance of the city of Raton; said ordinance being designated as Ordinance No. 133 in said complaint, but charged to have been Ordinance No. 135 in the return and answer of the sheriff to the writ of habeas corpus. On the day the complaint was filed the petitioners were sentenced to 60 days in the common jail of Colfax county, and to pay a fine of $25, and to pay costs amounting to $7.50 each, and a commitment was issued accordingly. The petitioners were, in accordance with the mandate of the so-called commitment, taken into custody by Abe Hixenbaugh, sheriff of Colfax county, and by him imprisoned in the county jail on the 18th day of November, 1913, and there they remain.

As to jurisdictional questions, a judgment under which the prisoner is held is aided by the same presumptions as in other cases of collateral assault. If the record is silent as to jurisdictional facts, jurisdiction is presumed.

The sheriff, by way of response to the writ, filed his return thereto. Thereupon the petitioners moved to quash the return and discharge the prisoners upon the petition and return of the officer. The return, which was designated “Return and Answer,” admitted all the material allegations of the petition, except the averments with respect to the ordinance upon which the prosecution was based in the justice court.

A. C. Voorhees and Elmer E. Studley, both of Raton, for petitioners.

Orie L. Phillips, Asst. Dist. Atty., of Raton, for the State.

HANNA, J. (after stating the facts as above).

The petitioners contend that the judgment rendered by the justice of the peace, upon which the commitment is based, was void for the following reasons: First, because there was no arraignment of the defendants; second, because the judgment sentencing each of the defendants to 60 days in the county jail and to pay a fine of $25 and costs was excessive, and beyond the power of the court to impose.

[1] In considering the first ground of objection to the judgment, it is necessary to admit the well-settled principle that the writ of habeas corpus is not a writ of error, nor does it, except when perverted, discharge the functions of a writ of error. 2 Freeman on Judgments, § 620; Hurd, Habeas Corpus (2d Ed.) 328.

[2] Pursuant to this principle it has been quite universally held that errors or irregularities in the course of the proceedings at or anterior to the trial, which, if presented to an appellate court by way of appeal or writ of error, must necessarily result in the reversal of the judgment, are not sufficient, for that reason, as grounds for the release of a prisoner upon application for a writ of habeas corpus. Freeman on Judgments (4th Ed.) § 620; Ex parte Siebold, 100 U. S. 371, 25 L. Ed. 717.

The particular phase of the question here raised--i. e., that there was no arraignment of the defendants--does not seem to have been passed upon by any court of last resort, save that of the Supreme Court of Indiana, which court held, in the case of Winslow v. Green, 155 Ind. 368, 58 N. E. 259, that, where one has been tried and convicted in the superior court, he will not be released by habeas corpus because he was not arraigned and did not plead in such court, since, as such errors do not go to the jurisdiction of the court, its judgment is not subject to collateral attack. In that case, as in the case now under consideration, it was not denied that the court had jurisdiction both of the subject-matter and the person of the defendant.

Our territorial Supreme Court, in the case of In re P. Peraltareavis, 8 N. M. 27, 41 Pac. 538, following Ex parte Siebold, 100 U. S. 371, 25 L. Ed. 717, said: “That the only ground on which that court [United States Supreme Court], or any court, without special statute authority, will give relief on habeas corpus, is where there is want of jurisdiction over the person or the cause, or some other matter rendering the proceedings void, as distinguished from what is merely erroneous and reversible.”

[3] Our habeas corpus statute was adopted prior to the rendition of the opinion on the Peraltareavis Case, and was doubtless carefully considered by the court at that time. We do not concede that the failure of the record, in this case, to show affirmatively an arraignment of the defendants, is a jurisdictional defect that would render void the judgment in the case and subject it to collateral attack. It has been held that, as to jurisdictional questions, a judgment under which the prisoner is held is aided by the same presumptions as in other cases of collateral assault. If the record is silent as to jurisdictional facts, jurisdiction is presumed. Freeman on Judgments, § 619; Ex parte Ah Men, 77 Cal. 198, 19 Pac. 380, 11 Am. St. Rep. 263.

In concluding our discussion upon this subject, we desire to observe that it is not contended by the petitioners that no arraignment was had; but their contention is entirely based upon the failure of the record to disclose the fact of arraignment.

The further contention of petitioners respecting defects in the complaint and impropriety of holding that the prosecution was had under Ordinance No. 135, of the city of Raton, when the complaint was originally made under Ordinance No. 133, are likewise collateral attacks upon the judgment of the justice court, which cannot now be entertained in this proceeding for the reason given.

[4] This leaves for our consideration the question that the judgment sentencing each of the defendants to 60 days in the county jail and to pay a fine of $25 and costs was excessive and beyond the power of the court to impose. The ordinance upon which the judgment was based provides: “Sec. 3. Any person violating any provisions of this ordinance shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in a sum of not exceeding twenty-five dollars, or by imprisonment in the county jail for a period not exceeding sixty days.”

It is urged by the petitioners that our statute is substantially the same as the statutes of Idaho and Missouri, and that our statute was adopted from the Missouri statute after it had been construed by the Supreme Court of that state in the case of Ex parte Page, 49...