Ex parte Cox

• Decision Date: 18 January 1893
• Parties: EX PARTE COX
• Court: Idaho Supreme Court

32 P. 197

3 Idaho 530

EX PARTE COX

Supreme Court of Idaho

January 18, 1893

ASSAULT WITH DEADLY WEAPON LIKELY TO PRODUCE GREAT BODILY HARM.-The applicant, John P. Cox, was indicted for the crime of an assault with intent to murder, and was convicted of an assault with a deadly weapon likely to produce great bodily harm, and sentenced to confinement in the state prison for a term of five years.

EXCESSIVE PUNISHMENT-VOID JUDGMENT.-Section 6732 of the Revised Statutes prescribes the punishment for the crime of which the applicant was convicted to be imprisonment for a term not exceeding two years, or fine of $5,000, or both such fine and imprisonment. The court sentenced the applicant to five years' imprisonment. Held, that the judgment was not authorized by law and is void.

JURISDICTION.-Jurisdiction to render the particular sentence imposed is as essential to its validity as jurisdiction of the person or subject matter.

HABEAS CORPUS.-Application for writ of habeas corpus for release of applicant. Granted.

(Syllabus by the court.)

James W. Reid, for Petitioner.

George M. Parsons, Attorney General, for the State.

No brief filed.

SULLIVAN J. Huston, C. J., and Morgan, J., concur.

OPINION

SULLIVAN, J.

This is an application for a writ of habeas corpus for the release of John P. Cox, who, it is alleged, is unlawfully imprisoned and restrained of his liberty by John P. Campbell warden of the Idaho state prison at Boise City, Idaho. It is alleged in the petition that said Cox was indicted at the June term, 1891, and tried at the October term, 1891, of the district court of the second judicial district of the state of Idaho, in and for the county of Idaho, for an assault with intent to commit murder, and that the jury returned the following verdict: "We, the jury in the above-entitled case, find the defendant guilty of an assault with a deadly weapon likely to produce great bodily harm." And the court thereupon entered judgment against and sentenced the prisoner to confinement in the state prison for a term of five years. That said judgment and sentence are void, for the reason that said court had no jurisdiction to impose said sentence and judgment under said verdict. A copy of the indictment, verdict and judgment are made a part of the petition. The court, on the filing of the petition issued a writ of habeas corpus to the said warden, commanding him to have the body of said John P. Cox before this court at a time therein fixed, and to show cause why the said prisoner should not be released. At the time fixed said warden made his return to said writ, which shows that the cause of the detention of the said John P. Cox was by virtue of a judgment and sentence of the district court of the second judicial district of Idaho, in and for the county of Idaho, and annexed to and made a part of his return the commitment and judgment of said court, which show substantially the same facts as shown by the petition, the substance of which is above stated.

The prisoner was indicted for the crime of an assault with intent to murder, and was convicted of the crime of an assault with a deadly weapon likely to produce great bodily harm. The punishment for the crime of an assault with intent to commit murder is prescribed by section 6598 of the Revised Statutes, and his imprisonment in the state prison not less than one, and not more than fourteen years, while the punishment for the crime of an assault with a deadly weapon likely to produce great bodily harm is prescribed by section 6732 of the Revised Statutes, and is imprisonment in the state prison not exceeding two years, or by fine not exceeding $ 5,000 or both. The court evidently considered that the prisoner had been convicted of an assault with intent to commit murder, and sentenced him to imprisonment for five years, while in fact the verdict of the jury finds him guilty of the crime of an assault with a deadly weapon likely to produce great bodily harm. Under said section 6732 the maximum imprisonment for the offense of which the prisoner was convicted is two years, and there is no provision of law authorizing a longer term of imprisonment for that crime.

It is conceded by the attorney general that the sentence under the verdict could not exceed two years; but he contends that the prisoner should not be released by writ of habeas corpus, because said judgment is merely erroneous, and not void, and cites some very respectable authority in support of that proposition, to wit: Ex parte Shaw, 7 Ohio St. 81, 70 Am. Dec. 55; Ex parte Bond, 9 S.C. 80, 30 Am. Rep. 20; Petition of Crandall, 34 Wis. 177; In re Wiliams, 39 Minn. 172, 39 N.W. 65. The counsel for the prisoner contends that the court had no jurisdiction to sentence the prisoner for a longer term than two years, and that the court exceeded its jurisdiction in rendering said judgment, and that the judgment, for these reasons, is absolutely void. There is no question but what the court had jurisdiction of the prisoner, and had jurisdiction to try him for the crime of which he was convicted, and to sentence him for that crime; but the question is whether the judgment or sentence which was rendered and pronounced was a mere erroneous exercise of power, and therefore voidable only, or is in excess of, and without, its jurisdiction, and therefore absolutely void. If the sentence is voidable only, the prisoner must be remanded; but, if it is absolutely void, he should be set at liberty. If a court having jurisdiction of the person of a prisoner, and jurisdiction to try and sentence the prisoner for the crime charged, on conviction sentences him to a longer term of imprisonment than the statute authorizes, is such judgment or sentence void, or voidable only? That is the precise question before us. If jurisdiction includes pronouncing the particular judgment authorized by statute, and no other, then the judgment pronounced is absolutely void, for the statute did not authorize such judgment.

19 Central Law Journal 102 contains an able article entitled "The Modern Idea of Jurisdiction." The author says "The idea of jurisdiction entertained by the old jurists appears to have been that jurisdiction is simply the power to decide something in a given controversy, to proceed to judgment, to render some kind of a judgment, and that beyond this everything else related to the propriety of the judgment rendered"; and cites authorities in support thereof. The distinguished author further says: "The modern idea, as distinguished from this, is that jurisdiction is not merely the power to proceed in a cause, and to render some judgment therein, but it is the power to render the particular judgment rendered. This modern idea has been taken up by several respectable courts, including the supreme court of the United States. . . . It will also be perceived that nearly every reported case in which the courts have asserted the power to inquire by habeas corpus whether other courts, in rendering a particular judgment, were cases where the courts so issuing the writs of habeas corpus were courts possessing appellate or superintending jurisdiction over the courts whose judgments were thus inquired into." It is stated in 12 American and English Encyclopedia of Law, page 247, that "there is a very clearly defined attempt in the latest cases in the United States, however, to escape from the position that the judgment of a court having jurisdiction to hear and determine is conclusive by adding to the definition of 'jurisdiction' a new element, viz., that jurisdiction is not merely the power to hear and determine, but also the power to render the particular judgment which was rendered"; and cites in support thereof cases decided by the supreme court of the United States, and decisions from the courts of last resort of several states. On page 251, supra, the following conclusion is reached: "The question, therefore, cannot be said to be definitely decided. The great weight attached to the decisions of the supreme court of the United States makes it at least probable that, if that court continues to hold the views expressed in the late cases cited supra, the courts of the various states will sooner or later adopt them; but the decisions thus far scarcely authorize a stronger statement than that there is a tendency in the later cases to hold that jurisdiction includes, not only the power to hear and determine, but also the power to render the particular judgment entered in the particular case." Black on Judgments, section 258, holds that jurisdiction to render the particular sentence imposed is as essential to its validity as the jurisdiction of the person or the subject matter. In commenting on certain decisions which held that if a court had authority to pronounce sentence, and while in the legitimate exercise of its power, committed a manifest error, in the number of years of confinement imposed on the defendant, the sentence was not void, but erroneous, and refused to release the prisoner on habeas corpus, the learned author says: "But the argument is far from satisfactory. It involves the error of overlooking the fact that jurisdiction to render the particular sentence imposed is equally as essential to its validity as the jurisdiction of the person or subject matter. If either of these three elements is wanting, the judgment is a nullity. Now, in respect to the sentence, the court has precisely the jurisdiction which the statute gives it--no more and no less; and if the statute prescribes that the sentence shall be for not less than three years, the court is utterly...