Ex parte Foster

• Decision Date: 17 February 1914
• Citation: 69 Or. 319,138 P. 849
• Parties: EX PARTE FOSTER.
• Court: Oregon Supreme Court

138 P. 849

69 Or. 319

EX PARTE FOSTER.

Supreme Court of Oregon

February 17, 1914

In banc. Appeal from Circuit Court, Marion County; William Galloway, Judge.

Application by Frank Foster for writ of habeas corpus to the Superintendent of the Penitentiary from an order dismissing the writ. On demurrer to the return, petitioner appeals. Affirmed, and petitioner remanded to custody.

The petitioner was convicted in the circuit court of Douglas county on his plea of guilty of the crime of assault and robbery, being armed with a dangerous weapon. It was thereupon "ordered and adjudged by the court that the said Frank Foster be confined in the penitentiary of the state of Oregon at Salem, and there kept a prisoner for an indeterminate sentence, as provided by law for said crime. * * *" Having been incarcerated in the penitentiary on this sentence, the prisoner sued out a writ of habeas corpus contending that he was unlawfully deprived of his liberty. The then superintendent of the penitentiary to whom the writ was directed made return that he had Foster in his custody by virtue of the judgment of the circuit court already quoted. The circuit court of Marion county which issued the writ dismissed the same on hearing a demurrer to the return, and the petitioner appeals.

William P. Lord, of Portland (Dan E. Powers, of Portland, on the brief), for petitioner. J. A. Benjamin, Asst. Atty. Gen. (A M. Crawford, Atty. Gen., on the brief), for defendant.

BURNETT J. (after stating the facts as above).

The record shows that the defendant was indicted for the crime mentioned in December, 1911, and that he was sentenced January 9, 1912. The penalty provided for the felony in question is imprisonment in the penitentiary for a period of not less than ten years or during the natural life of such person so convicted; provided, however, that the minimum punishment shall be exercised only in those cases where in the judgment of the court leniency should be shown. Section 1920, L. O. L. It is prescribed in section 1592 L. O. L., as amended by Laws 1911, p. 173, as follows "Whenever any person is convicted of a crime for which the maximum punishment is a definite term of years in the penitentiary the court shall, unless it impose other sentence than a sentence to serve a term in the penitentiary, sentence such person to imprisonment in the penitentiary without limitation of time, stating in such judgment and sentence the minimum and maximum penitentiary penalty for such crime, as provided by law, which said sentence shall be known as an indeterminate sentence. * * *" The contention of the petitioner is that the circuit court had no authority or power to impose upon the defendant in the criminal action the indeterminate sentence, and hence that his detention is utterly unlawful, entitling him to immediate liberation by habeas corpus. It is said in section 628, L. O. L., that "persons imprisoned or restrained by virtue of the judgment or decree of a competent tribunal of civil or criminal jurisdiction, or by virtue of an execution issued upon such judgment or decree" shall not be allowed to prosecute the writ. Again, it is stated in section 641, L. O. L.: "It shall be the duty of the court or judge forthwith to remand such party if it shall appear that he is legally detained in custody, * * * by virtue of the judgment or decree of any competent court of civil or criminal jurisdiction, or of any execution issued upon such judgment or decree; * * * and, that the time during which such party may be legally detained has not expired." Section 643, L. O. L., reads thus: "But no court or judge, on the return of a writ of habeas corpus, has power to inquire into the legality or justice of any order, judgment, or process specified in section 628. * * *"

It is settled law in this state that, unless the order or process upon which the petitioner is detained shall appear to be utterly void, no relief can be had under the writ. Ex parte Tice, 32 Or. 179, 49 P. 1038; Ex parte Stacey, 45 Or. 85, 75 P. 1060; Harrington v. Jones, 53 Or. 237, 99 P. 935. It is stated in People ex rel. v. Liscomb, 60 N.Y. 559, 571 (19 Am. Rep. 211), as follows: "If the process is valid on its face, it will be deemed prima facie legal, and the prisoner must assume the burden of impeaching its10 validity by showing a want of jurisdiction. Error, irregularity, or want of form is no objection; nor is any defect which may be amended or remedied by the court from which it issues. If there was no legal power to render the judgment or decree, or issue the process, there was no competent court, and consequently no judgment or process. All is coram non judice and void."

The question to be determined is whether the judgment quoted is absolutely void or merely erroneous. It was decided in Martin v. District Court, 37 Colo. 110, 86 P. 82, 119 Am. St. Rep. 262, that a prisoner sentenced under an indeterminate sentence law for a crime committed before such law went into effect was detained by a judgment which was not void, but at most only voidable, and so could not have the benefit of habeas corpus. It was further held in the same case that even where the judgment is wholly void a defendant will not, except in extraordinary cases be released from imprisonment on habeas corpus if appropriate relief can be worked out by a writ of error or appeal.

The weight of precedents is to the effect that, where a court of general jurisdiction having authority over the person of a defendant and the subject-matter of the charge against him imposes upon him a punishment of the kind and at the place provided by law, nevertheless exceeding the term limited by statute, he cannot be discharged on habeas corpus until he has performed so much of the sentence as the court had power to pronounce. In re Bishop, 172 Mass. 35 51 N.E. 191; In re Sellers, 186 Mass. 301, 71 N.E. 542; Ex parte Mooney, 26 W.Va. 36, 53 Am. Rep. 59; De Bara v. U. S., 99 F. 942, 40 C. C. A. 194; Ex parte Davis (C. C.) 112 F. 139; In re Belt, 159 U.S. 95, 15 S.Ct. 987, 40 L.Ed. 88; In re Swan, 150 U.S. 637, 648, 14 S.Ct. 225, 37 L.Ed. 1207; In re O'Neill, 143 Cal. 634, 77...