Ex parte Kaufman

• Decision Date: 30 April 1881
• Citation: 73 Mo. 588
• Parties: EX PARTE KAUFMAN.
• Court: Missouri Supreme Court

73 Mo. 588

EX PARTE KAUFMAN.

Supreme Court of Missouri.

April Term, 1881.

Habeas Corpus.

WRIT DENIED.

Smith & Krauthoff for the petitioner.

The petitioner's case comes within section 2650, Revised Statutes, and he is entitled to be discharged. In sentencing him to the penitentiary, when he was under the age of eighteen years, the court exceeded its jurisdiction both as to the place of imprisonment and the person whom it undertook to sentence. For the same reason the sentence was passed “in a case and under circumstances not authorized by law.” To determine whether a sentence has been so passed, the entire case and circumstances, so far as they relate to the matter of jurisdiction, and not merely the record, are open for investigation. Hurd on Hab. Corp., pp. 300 to 319; Ex Parte Jilz, 64 Mo. 205; Ex Parte Brown, 72 Mo. 83. The defect here is not a mere irregularity, but an illegality, and may be corrected on habeas corpus. Hurd, pp. 327, 328; Amidon's case, 40 Mich. 628. But even if it be determined that the defect is not such as affects the jurisdiction of the court rendering the judgment, yet it cannot be doubted that the sentence of this petitioner to the penitentiary is erroneous; and it is made the duty of the court to correct this error. R. S., § 2688.

D. H. McIntyre, Attorney General, contra.

The judgment of conviction having been rendered by a court of competent authority, having jurisdiction of the person of the defendant and the subject matter, and no defect appearing upon the record, the party cannot be relieved on habeas corpus.

NORTON, J.

This is a proceeding by habeas corpus in which Amos S. Kaufman, the petitioner, alleges he is illegally restrained of his liberty in the State penitentiary by the warden thereof. The warden, in his return avers that, at the April term, 1881, of the criminal court within and for Pettis county, said petitioner was convicted of larceny in a dwelling house, in said county, and by the judgment of the court was sentenced to confinement in the penitentiary for the term of two years, a copy of which sentence and judgment he files with his return as his authority for holding the petitioner. The said judgment of said criminal court, under which defendant is held, being a final judgment rendered by a court having jurisdiction n such matters, our duty in the premises is prescribed by section 2648, Revised Statutes 1879, which provides that in proceedings by habeas corpus, the court or magistrate before which the case...