Ex parte Loundagin

• Decision Date: 02 July 1929
• Citation: 278 P. 950,129 Or. 652
• Parties: EX PARTE LOUNDAGIN.
• Court: Oregon Supreme Court

278 P. 950

129 Or. 652

EX PARTE LOUNDAGIN.

Supreme Court of Oregon, En Banc.

July 2, 1929

Appeal from Circuit Court, Marion County; L. H. McMahan, Judge.

Application by L. A. Loundagin for writ of habeas corpus to secure discharge of A. P. Loundagin from the Oregon State Penitentiary. From a judgment ordering discharge of the prisoner, Henry W. Meyers, Superintendent of the Oregon State Penitentiary, appeals. Reversed and rendered.

This is an appeal by defendant, Henry W. Meyers, from a judgment of the circuit court, ordering the discharge from the Oregon state penitentiary of A. P. Loundagin, the son of the petitioner for the writ of habeas corpus. The writ was served upon H. W. Meyers, superintendent of the penitentiary, on January 25, 1929. On the following day it was returned into court, together with the official certificate, stating, in substance, that on the 9th day of November, 1928, A. P Loundagin, named in the writ, was committed and delivered into his custody pursuant to a judgment of the circuit court for Umatilla county, Oregon, dated October 30, 1928, and that he was then holding and detaining the said A. P. Loundagin in the Oregon state penitentiary under and by virtue of said judgment and writ, a duly certified copy of which was attached to the return to the writ.

The petitioner, respondent herein, filed a replication to said return, in which he admits the defendant Meyers is detaining the said A. P. Loundagin in the state penitentiary under and by virtue of said judgment, which judgment, however, he asserts is absolutely void for certain reasons, set forth therein. The defendant demurred to said replication, upon the ground that the same did not state facts sufficient to show that the imprisonment or restraint of A. P. Loundagin, named in the writ, was unlawful, or that A. P. Loundagin was entitled to his discharge. The lower court overruled the demurrer, and the defendant Meyers refused to plead further and elected to stand upon his demurrer. The court rendered judgment in favor of petitioner, and ordered that A. P Loundagin be forthwith discharged from his said imprisonment by the said Henry W. Meyers, superintendent of the Oregon state penitentiary at Salem, Marion county, Oregon.

I. H Van Winkle, Atty. Gen., and J. B. Hosford, Asst. Atty. Gen., for appellant.

Willard H. Wirtz, of Salem, for respondent.

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

It is well settled that, unless it is made to appear that the judgment, or process, under which the person seeking his discharge is absolutely void, no relief can be had under a writ of habeas corpus. If the process is valid on its face, it will be deemed prima facie efficient, and the prisoner must assume the burden of impeaching its validity by showing a want of jurisdiction. Errors, or irregularities, which render proceedings voidable merely, the court cannot reach, but only such defects in substance as render the process or judgment absolutely void. Ex parte Tice, 32 Or. 179, 182, 49 P. 1038; Ex parte Foster, 69 Or. 319, 322, 138 P. 849; In re Application of Davis, 118 Or. 693, 698, 247 P. 809; Kelley v. Meyers, 124 Or. 327, 263 P. 903, 56 A. L. R. 661.

The respondent's attack upon said judgment is based upon various grounds, set out at length in his replication to the return of the writ, which, in substance, are as follows:

"(1) That the circuit court of Umatilla county was without jurisdiction of the subject-matter or of the person of the said A. P. Loundagin at the time the purported judgment was rendered, and that at said time said court was not a competent court of either civil or criminal jurisdiction.

"(2) That said judgment discloses upon the face thereof the following omissions on the part of the judge of said court: (a) That said judge failed and neglected, at the time said A. P. Loundagin appeared in said court for arraignment without counsel, to inform said A. P. Loundagin that it was his right to have counsel before being arraigned, and that it does not appear from said judgment that the said judge asked the said Loundagin if he desired counsel, as required by section 1463, Or. L; (b) that the said A. P. Loundagin was not informed by the court at the time of his arraignment that he might be allowed one day within which to plead to the information filed against him; (c) that no friend, guardian, or parent of the said A. P. Loundagin was present in court at the time of his arraignment, and that the filing of the information, the arraignment of the said A. P. Loundagin, his plea of guilty, and the entry and pronouncement of judgment against him all occurred on the same day.

"(3) That the said A. P. Loundagin, at the time said judgment of conviction was rendered against him, was a minor of the age of 16 years, and that he was not first taken directly before the juvenile court of Umatilla county, or before any juvenile court, prior to being informed against and arraigned upon a felony charge in the circuit court, as provided in section 9812, Or. L.

"(4) That no justice of the peace or police magistrate did transfer the case or charge against said minor to any juvenile court for action and disposition as provided in sections 9811 and 9812, Or. L., and that no juvenile court had made any order remanding said minor to the circuit court for trial upon said criminal charge, prior to the filing of the information, arraignment and conviction of said minor in the Umatilla county circuit court.

"(5) That the officer who arrested the said minor informed said minor that, if he should be taken before the juvenile authorities, he would be sent to the boys' training school of the state until he reached the age of 21 years, while if he would plead guilty in the circuit court he would be sentenced to one year in the Oregon state penitentiary and thereafter could be released; that by means of said statements the officer induced the said minor to appear before the circuit court and plead guilty to the charge filed against him therein."

The circuit court of the state of Oregon for Umatilla county had jurisdiction of the case in which the judgment was rendered. Section 9, art. 7, State Constitution; Ex parte Stacey, 45 Or. 85, 88, 75 P. 1060; State v. Chandler, 113 Or. 656, 234 P. 266; sections 9783 to 9818, Or. L.; State v. Dunn, 53 Or. 304, 308, 90 P. 278, 100 P. 258. The theory of respondent is that the trial court was without jurisdiction to render the judgment, for the reason that the defendant in the case, alleged to be a minor under 18 years of age, was not first taken before any juvenile court, and for the further reason that the circuit judge, who pronounced judgment of conviction, failed to inform the defendant at the time of his arraignment of certain rights, which respondents assert are guaranteed by the laws and Constitution of the state to persons accused of crime.

Section 9 of article 7 of the state Constitution provides: "All judicial power, authority, and jurisdiction not vested by this Constitution, or by laws consistent therewith, exclusively in some other court, shall belong to the circuit courts; and they shall have appellate jurisdiction and supervisory control over the county courts, and all other inferior courts, officers, and tribunals."

This constitutional provision was referred to by this court in Ex parte Stacey, 45 Or. 85, 88, 75 P. 1060, 1061, and was held to mean that: "The circuit courts of this state have exclusive original jurisdiction of all felonies committed therein."

In State v. Chandler, 113 Or. 652, 656, 234 P. 266, 267, this court said: "In the absence of some statute depriving the circuit court of jurisdiction, that court has jurisdiction of every offense committed and triable within the county."

It is clear that, unless the juvenile courts are vested with exclusive jurisdiction of cases involving the commission of crimes by minors under the age of 18 years, the circuit courts of the state have ample power and jurisdiction to try such cases. The respondent's contention seems to be that the Juvenile Court Law has deprived the circuit courts of such jurisdiction. The determination of this question necessitates a brief examination of the Juvenile Court Law. Said statute will be found in sections 9783 to 9818, Or. L.

Sections 9801 and 9802 respectively define "child dependency" and "child delinquency," and provide that children of either sex under the age of 18 years, and otherwise coming within the scope of said definition, shall be deemed dependent or delinquent children, as the case may be. Sections 9803 and 9804 specify the procedure by which such children may be brought before the juvenile court, in order that the question of their dependency or delinquency may be inquired into and determined by said court. Section 9811, Or. L., as amended by chapter 100, p. 151, General Laws of Oregon 1923, provides for the disposition of delinquent children by the court, and amongst other things, authorizes the commitment of such children to the state reform school, or to any other institution which may be established for the care of delinquent children.

Section 9812, Or. L., directs, in part, that when a child under the age of 18 years is arrested, with or without warrant, such child may, instead of being taken before a justice of peace or police magistrate, be taken directly before the juvenile court, or a justice of the peace may transfer the case to the...