Ex Parte Mooney.

• Decision Date: 27 June 1885
• Citation: 26 W.Va. 36
• Court: West Virginia Supreme Court
• Parties: Ex Parte Mooney.

26 W.Va. 36

Ex Parte Mooney.

Supreme Court of Appeals of West Virginia.

Submitted June 16, 1885.

Decided June 27, 1885.

1. Upon proceedings in habeas corpus, if the petitioner deems the re-

turn insufficient, he should not demur to it but move the court to discharge him. (p. 39)

2. Jurisdiction in proceedings on habeas corpus in cases, where the

detention is by commitment under legal process, is not strictly speaking a power of revision but a power to arrest a void order or judgment. It acts directly on the effect of the order or judgment but only collaterally on the order or judgment itself. It can not, therefore, be made a substitute for a writ of error or certiorari. (p. 39.)

3. When a party is imprisoned under a judgment or order of a court

having jurisdiction to make such order, he can not be discharged on habeas corpus, however erroneous such judgment or order may be; but it is otherwise if the court had no jurisdiction to make the order or judgment. (p. 41.)

4. Where a court has jurisdiction of the subject-matter and of the

person, and it pronounces a severable judgment or sentence, one part of which is authorized by law and another distinct part is not so authorized, the prisoner will not be discharged on habeas corpus, when it does not appear that he has undergone the full punishment imposed by the legal portion of the sentence. (p. 43.)

5. Under the provisions of section nine of chapter one hundred and

eighteen of Acts of 1882 the court sentenced a party, found guilty of unlawfully wounding with intent to main, disfigure, disable and kill, to confinement in the penitentiary for one year and to pay a fine of one hundred dollars, Held:

Such a party is not entitled to be discharged on habeas corpus.

The facts of the case are sufficiently stated in the opinion of the Court:

J. 0. Pendleton and W. W. Arnett for plaintiff in error.

Alfred Caldwell, Attorney General, for the sheriff.

Snyder, Judge:

Upon the petition of John Mooney, alleging that he was detained, confined and restrained of his liberty by W. C. Handlan, sheriff of Ohio county, in the jail of said county, without authority of law, a judge of the circuit court of said county on June 5, 1885, in vacation awarded a writ of habeas corpus, commanding said sheriff to produce before him the body of said Mooney, together with the cause ot his being detained. The respondent on the same day produced before the judge the said Mooney, and in his return stated that he detained him by virtue of a judgment of the said circuit court, dated May 16, 1885, a copy of which is made part of his return. From this copy it appears, that the petitioner, Mooney, was tried by said court upon an indictment and by the verdict of a jury " found guilty of unlawfully wounding Prank McAclams, with intent to maim, disfigure, disable and kill him," and that upon said verdict the court pro- nounced judgment," that the prisoner, John Mooney, be conveyed to the penitentiary of the State and confined therein for the period of one year, and treated therein as prescribed by law, and that he pay a fine of $100.00/' and the costs, &c.

The petitioner demurred to and moved to quash the return as insufficient. The judge overruled said demurrer and motion and remanded the petitioner; and he thereupon obtained this writ of error.

The statute under which said indictment was found and judgment pronounced is as follows:

" If any person maliciously shoot, stab, cut or wround any person, or by any means cause him bodily injury, with intent to maim, disfigure, disable or kill, he shall, except when it is otherwise provided, be punished by confinement in the penitentiary not less than two nor more than ten years. If such act be done unlawfully, but not maliciously, with the intent aforesaid, the offender shall, at the discretion of the court, either be confined in the penitentiary not less than one nor more than five years, or be confined in jail not exceeding twelve months, and fined not exceeding five hundred dollars." Sec. 9, chap. 118, Acts 1882.

It is contended for the petitioner, that this statute did not authorize the court to sentence the petitioner to confinement in the penitentiary and also to pay a fine; but that the only construction of it is, that the court may sentence him to the penitentiary simply; or it may sentence him to confinement in jail and to pay a fine; and that by no reasonable interpretation of it can the court unite a fine with confinement in the penitentiary. And it is, therefore, claimed, that inasmuch as the court has sentenced the petitioner to the penitentiary and also to pay a fine, it has exceeded its jurisdiction, and as a consequence the whole sentence or judgment is void, and the petitioner is entitled to be discharged on habeas corpus.

Whether or not this is the true interpretation of the statute, it is unnecessary, and, perhaps, improper, to decide in this proceeding; as it is not the only construction that can by any possibility be given to it, the proper mode of having it construed is by writ of error to said judgment and not by this collateral proceeding. But conceding for the purposes of this writ of error, that such is the true and only proper construe- tion of the statue; and that the court committed a manifest blunder in pronouncing the sentence it did, then the vital question is presented: Is the petitioner illegally detained by the sentence?

Before discussing this question, I deem it proper to consider a matter of practice and to state some of the general principles governing the courts in cases of habeas corpus.

The petitioner in this case demurred to the return and moved to quash it as insufficient. In some cases this has been allowed, but the better, and what now seems to be the settled practice is for the petitioner, if he deems the return insufficient to move to discharge the prisoner. On this motion the return is conceded to be true, and unless it shows sufficient cause for the detention of the prisoner he will be discharged. Gunninyham v. Thomas, 25 Ind. 171; Watson's Case, 26 Eng. C. L. 237.

The writ of habeas corpus is applicable to two distinct classes of cases. First. Where the restraint or detention is by private authority; and second, when the detention is by commitment under legal process. The latter class is all that need be considered in this case. In this class the jurisdiction is, in a general sense, appellate in its nature; because the decision that the individual shall be imprisoned must always precede the application for a writ of habeas corpus; and the writ must always be for the purpose of revising that decision, and therefore is appellate in its nature. Ex Parte Bollman, 4 C ran eh 75.

Appellate jurisdiction in the sense it is here used does not necessarily import a subordination of one court or officer to another, although that is its more usual signification. It signifies the power to act judicially upon a question or right, notwithstanding a supposed conclusion against it resulting from an alleged judgment. It is not, strictly speaking, a power of revision, which includes properly the power to affirm or reverse the judgment or order, and so establish or destroy it; but a power to arrest the execution of a void judgment or order. It acts directly.on the effect of the judgment, that is on the imprisonment; but only collaterally on the judgment itself. The jurisdiction, therefore, under the writ of habeas corpus over the judgment or order relied on to justify the imprisonment is only collaterally appellate. Hurd on Habeas Corpus, (330) 324.

It is the general rule that, where the return shows a detainer on legal process, the existence and validity of the process are the only facts upon which issue can be taken. 3 Hill, appendix, 658, note 30; People v. Cassel, 5 Id. 164.

If there is enough on the face of the process to protect the officer who executed it from an action of trespass or false imprisonment the prisoner will not be discharged under habeas corpus. Bennac v. People, 4 Barb. 81.

The jurisdiction over the process being only collaterally appellate, as we have seen, habeas corpus can not have the force and operation of a writ of error or certiorari, nor is it designed as a substitute for either. It does not, like them, deal with errors or irregularities which render the proceeding voidable only; but with those radical defects which render it absolutely void. A proceeding defective for irregularity and also one void for illegality may be reversed upon error or certiorari; but it is the latter defect only which gives authority to discharge on habeas corpus. Ex Parte Van Hogan, 25 Ohio St. 426; In re Schenck, 74 K C. 607, 610; Ex Parte Virginia, 100 IT. S. 339; Petition of Semler, 41 Wis. 517.

An irregularity is defined to be a want of adherence to some prescribed rule or mode of proceeding; and it consists, either in omitting to do something that is necessary for the due and orderly conducting of a suit, or doing it in an unreasonable time or improper manner. Tidd's Pr. 434. It is the technical term for every defect in practical proceedings or the mode of conducting an action or defence, as distinguishable from defects in pleadings. 3 Chitty's Gen. Pr. 509.

Illegality is, properly, predicable of radical defects only, and signifies that which is contrary to the principles of law, as distinguishable from mere rules of procedure. It denotes a complete defect in the proceedings. Tidd's Pr. 435; Ex parte Kellogg, 6 Vt. 509.

It would be irregular to sentence a person to imprisonment in his absence, where the absence was occasioned by the order of the court pronouncing the sentence. It would be illegal to sentence him to imprisonment for a crime which was pun- ish able by pecuniary fine only. Ex parte Gibson, 31 Gal. 619; Petition of Orandall, 34 Wis. 177.

Wise rules of procedure established for the regulation ot other judicial proceedings are not to be discarded in that of habeas corpus when they are applicable. One of...