Ex parte Farnham

Decision Date01 December 1877
Citation3 Colo. 545
CourtColorado Supreme Court

PETITION for habeas corpus. The case is sufficiently stated in the opinion.

Mr. C S. EYSTER, and Mr. THOMAS MACON, for the relator.


The judgment of the court was pronounced in due form of law. The warrant of commitment, we must presume, in the silence of the petition, is regular on its face. The error upon which the relator relies concerns the action of the court, in receiving the verdict. If, as alleged in the petition, the verdict was received, and the jury discharged during the enforced absence of the relator, in jail, we entertain no doubt that the court erred in thereafter pronouncing judgment upon the verdict and that by writ of error, if the error complained of is apparent of record, the judgment would be reversed. Such was the decision of the Territorial supreme court, in Green v. The People, 3 Col., at the February term, 1876. The action of the court below in the premises was a radical departure from the well-established mode of procedure, when the defendant is on trial for a felony. It is an error of which the relator may avail himself in the manner prescribed by law. There was, however, no jurisdictional defect in the court. Under the constitution and the laws, the court is clothed with complete authority to pronounce the very sentence from the effect of which the relator now seeks to be relieved.

A writ of habeas corpus will not issue to enable this court to review a judgment that is merely irregular or erroneous. In the case before us the sole ground of complaint is in no sense jurisdictional. The subject of complaint is an irregularity only. Hurd on Habeas Corpus, p. 328 illustrating the distinction between the sentence of a court void for illegality, in which case a writ of habeas corpus will lie, and the sentence or judgment of a court, erroneous by reason of any irregular proceeding preliminary to the judgment, in which case the writ will not lie, says: 'It would be irregular to sentence a man to imprisonment in his absence where the absence was occasioned by the order of the court pronouncing the sentence. It would be illegal to sentence him to imprisonment for a crime which was punishable by a pecuniary fine only.'

We are not permitted to review and, in effect, nullify in this collateral proceeding an erroneous judgment of a court having authority to pronounce the same, and thus to...

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9 cases
  • Martin v. District Court of Second Judicial Dist. of Colorado
    • United States
    • Colorado Supreme Court
    • May 7, 1906
    ... ... right, any by some courts it is called a 'civil ... cause' or 'civil [37 Colo. 113] action.' Church ... on Habeas Corpus (2d Ed.) § 88; Ex parte Tom Tong, 108 U.S ... 556, 2 S.Ct. 871, 27 L.Ed. 826. Other cases deem the ... proceeding a criminal action. The authorities are collated in ... conviction ... [86 P. 84] ... is wholly void that a prisoner may be released in habeas ... corpus under a statute like ours. Ex parte Farnham, 3 Colo ... 545. That statute (section 1611, Gen. St. 1883) expressly ... provides that if it appears that the prisoner is in custody ... by ... ...
  • Ex Parte Degener
    • United States
    • Texas Court of Appeals
    • December 19, 1891
    ...may be released on habeas corpus." Citing the following authorities: People v. Liscomb, 60 N. Y. 559; In re Petty, 22 Kan. 477; Ex parte Farnham, 3 Colo. 545; Ex parte Virginia, 100 U. S. 339; Kirby v. State, 62 Ala. 51; Ex parte Simmons, Id. 416; Ex parte Yerger, 8 Wall. 85; Ex parte Willi......
  • Mackin v. People
    • United States
    • Illinois Supreme Court
    • September 30, 1886
    ...jurisdiction in the court to act in the case. People v. Liscomb, 60 N. Y. 559;S. C. 11 Alb. Law J. 396;In re Petty, 22 Kan. 479;Ex parte Farnham, 3 Colo. 545;Ex parte Virginia, 100 U. S. 339;Kirby v. State, 62 Ala. 51; Ex parte Simmons, Id. 416; Ex parte Yerger, 8 Wall. 85;Ex parte Williams......
  • Zimmerman v. Angele
    • United States
    • Colorado Supreme Court
    • February 17, 1958
    ...by habeas corpus, leaving the parties aggrieved by any step that is merely erroneous to the usual remedy by a writ of error. Ex parte Farnham, 3 Colo. 545. * * * The district court having jurisdiction of the defendant, and jurisdiction of the offenses charged, when the application for the c......
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