Ex parte Farnham

• Decision Date: 01 December 1877
• Citation: 3 Colo. 545
• Parties: EX PARTE FARNHAM.
• Court: Colorado Supreme Court

3 Colo. 545

EX PARTE FARNHAM.

Supreme Court of Colorado

December, 1877

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

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

THATCHER C. J.

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...