Ex parte Harlan

• Decision Date: 31 October 1891
• Citation: 27 P. 920,1 Okla. 48,1891 OK 7
• Parties: Ex Parte HARLAN.
• Court: Oklahoma Supreme Court

27 P. 920

1 Okla. 48, 1891 OK 7

Ex Parte HARLAN.

Supreme Court of Oklahoma

October 31, 1891

Petition for habeas corpus by James J. Harlan. Denied.

Where the court or officer was without jurisdiction or power to render judgment or issue process for the imprisonment of a party, the imprisonment was illegal, and the courts will relieve by habeas corpus.

Ledru Guthrie, for petitioner.

Horace Speed, for the United States.

GREEN C.J.

The petitioner for a writ of habeas corpus in this case was convicted of the crime of perjury on the 23d day of April, 1891, in the district court of Oklahoma county sitting as and exercising the jurisdiction of a district court of the United States, and was sentenced to confinement at hard labor in the penitentiary at Columbus, Ohio, for a term of two years, and that he pay a fine of one dollar. The indictment against the petitioner and on which he was convicted, is set out in the petition and shows that the perjury of which he was convicted was assigned on an affidavit, subscribed and sworn to by the petitioner before a notary public of Oklahoma county, and was in corroboration of a contest affidavit of one Rhoda Summers which was used in a land contest before the register and receiver of the United States land-office at Oklahoma City, and of which contest the register and receiver had jurisdiction. It is contended in behalf of the petitioner that the indictment does not state facts sufficient to constitute the crime of perjury, or a public offense, under the laws of the United States, and for that reason the court had no jurisdiction, and the judgment is void, and the imprisonment illegal, and that the petitioner should be discharged on habeas corpus. In support of this contention it is claimed that there is no law of the United States providing for a corroborating affidavit to a contest affidavit in the local land-office, and that a corroborating affidavit in such case is only made necessary in the initiation of a contest by rules and instructions of the commissioner of the general land-office, which have not the force and effect of law; and, as perjury can only be committed, in proceedings in the local land-office, where an oath is required by a law of the United States, the false swearing on petitioner's corroborating affidavit does not amount to the crime of perjury, and no criminal offense is charged in the indictment, and the proceedings in the trial court were coram non judice and void. The law is well settled that in a case like the present, in which the petitioner is in execution upon a conviction, the writ of habeas corpus ought not to be awarded if the trial court had jurisdiction of the person and the crime charged, and did no act beyond the powers conferred upon it. And the proceedings of the trial court will be examined, so far as necessary, to determine the question of jurisdiction; and if it appears that the court transcended its powers the writ will be granted, and the prisoner discharged, even after judgment; but, if the trial court had jurisdiction and power to convict and sentence, the writ cannot issue to correct mere errors. Ex parte Parks, 93 U.S. 18; Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152; Ex parte Lange, 18 Wall. 163; Ex parte Watkins, 3 Pet. 203. The district court of Oklahoma county, when sitting as and exercising the powers and jurisdiction of a district court of the United States, has jurisdiction of the crime of perjury, under the laws of the United States, committed in that county. Organic Act, § 9. And, as the petitioner was indicted in that court, and arrested and brought before the court to answer the indictment, and on arraignment entered a plea of not guilty, the court had jurisdiction of the person of the petitioner, and also of the subject-matter of the indictment. But it is urged that the indictment states no criminal offense;...