Ex parte Hosoda

• Decision Date: 26 March 1912
• Citation: 123 P. 20,45 Mont. 310
• Parties: Ex parte HOSODA.
• Court: Montana Supreme Court

123 P. 20

45 Mont. 310

Ex parte HOSODA.

Supreme Court of Montana

March 26, 1912

Application by Harry Hosoda for habeas corpus, directed against the sheriff of Powell county. Writ refused, and applicant remanded.

W. E Keeley, of Deer Lodge, for applicant. Albert J. Galen, Atty Gen., and J. A. Poore, Asst. Atty. Gen., for the State.

BRANTLY C.J.

Application for writ of habeas corpus. On January 27th of this year Harry Hosoda, a single man, and Bertha Mahoney, a single woman were, by complaint filed in the justice's court of George W. Carleton, justice of the peace for Cottonwood township, in Powell county, charged with the crime of living together in open and notorious cohabitation in a state of fornication. Upon a trial by a jury they were found guilty. Immediately upon the return of the verdict, the defendants being present in person and by counsel, the justice pronounced sentence imposing a fine and a term of imprisonment upon both of them. No objection was interposed by either defendant or by counsel. The complainant at once gave notice of appeal to the district court, and thereupon he and his codefendant were remanded to the custody of the sheriff, by whom they are now detained in the county jail. The complainant seeks his release upon the ground that in pronouncing sentence immediately upon return of the verdict, instead of postponing it to a time not less than six hours or more than two days thereafter, as directed by the statute (Rev. Codes, § 9614) and without a formal waiver by complainant, the justice exceeded his jurisdiction, with the result that the judgment is void. There is incorporated in the sheriff's return a copy of the record of the proceedings had in the justice's court. The correctness of the transcript is not questioned; therefore all of the proceedings are properly before us for consideration.

The statute provides: "After a plea or verdict of guilty, or after a verdict against the defendant, on a plea of a former conviction or acquittal, the court must appoint a time for rendering judgment, which must not be more than two days nor less than six hours after the verdict is rendered, unless the defendant waive the postponement. If postponed, the court may hold the defendant to bail to appear for judgment. A judgment must be entered in the minutes of the court as soon as rendered." Section 9614, Rev. Codes.

That a justice's court under the Constitution is one of limited jurisdiction, having only such powers as are conferred by law, has frequently been decided by this court. Const. art. 8, § 20; Oppenheimer v. Regan, 32 Mont. 115, 79 P. 695; State ex rel. Matthews v. Taylor, 33 Mont. 215, 83 P. 484; State ex rel. Collier v. Houston, 36 Mont. 178, 92 P. 476, 12 Ann. Cas. 1027. But it does not follow from this fact that if the justice has jurisdiction of the subject-matter and has regularly obtained jurisdiction of the parties, the judgment reached by him, either in a civil or criminal case, is rendered void by every error which has intervened during the course of the proceedings.

The offense with which the complainant is charged is a misdemeanor. Rev. Codes, § 8343. It falls within the jurisdiction of a justice. Section 6288. There is no question but that the complainant had been arrested and was properly before the justice for trial. The forms of law were all complied with, up to the time of pronouncing judgment. At that time the complainant was present with his counsel. He or at least his counsel, knew what formalities the law required in that behalf, as well as his right to insist upon their observance, or, at his option, to waive them. He interposed no objection. Under these circumstances, we think he should be held to have waived his right to a postponement for judgment. In People v. Johnson, 88 Cal. 171, 25 P. 1116, the defendant had been convicted of a felony. On appeal the point was made that the judgment was erroneous because it had been...