Ex parte Moore

• Decision Date: 04 October 1941
• Docket Number: Cr. No. 180.
• Citation: 300 N.W. 37,71 N.D. 274
• Parties: Ex parte MOORE.
• Court: North Dakota Supreme Court

71 N.D. 274

300 N.W. 37

Ex parte MOORE.

Cr. No. 180.

Supreme Court of North Dakota.

Oct. 4, 1941.

Syllabus by the Court.

1. The writ of habeas corpus cannot be used as a substitute for appeal or writ of error to obtain a review of the correctness of acts or rulings of a court, acting within its jurisdiction. On habeas corpus the inquiry is limited to questions of jurisdiction.

2. As a general rule a trial court has no authority to set aside a valid judgment and impose a new or different judgment increasing the punishment, after the original judgment has been put into operation. But, the court's power to pronounce judgment is not exhausted where it has pronounced a judgment which is void, or so defective in matter of substance as to be unenforceable. In such case the court has power to substitute a legal and valid judgment for the former invalid one.

3. Where the judgment pronounced upon one who has been regularly convicted of a crime orders imprisonment in a place other than that prescribed by law, the court which pronounced the judgment has authority to amend it to provide imprisonment in a place prescribed by law.

Proceeding in the matter of the application of Joe Moore for a writ of habeas corpus.

Writ denied.

Simpson, Mackoff & Kellogg, of Dickinson, for petitioner.

Alvin C. Strutz, Atty. Gen., and T. F. Murtha, State's Atty., of Dickinson, for respondent.

CHRISTIANSON, Judge.

Joe Moore has petitioned this Court for a writ of habeas corpus. It appears from the petition that he is incarcerated in the State Penitentiary in Burleigh County, and that the District Court of that County has denied an application for habeas corpus. The petition recites that the petitioner is illegally restrained of his liberty and confined in the State Penitentiary by virtue of a judgment rendered by the District Court of Stark County on July 25, 1941, and that said judgment is null and void and of no force and effect. In accordance with the usual practice adopted by this Court in such cases, an order to show cause was issued, addressed to the Warden of the State Penitentiary. Walker v. Johnston, 311 U.S. 635, 61 S.Ct. 68, 85 L.Ed. 404;Id., 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830. That official appeared and filed a return, and a hearing was had before this Court.

The material and undisputed facts are as follows:-

On July 22, 1941, an information was filed in the District Court of Stark County charging the petitioner, Joe Moore, with the crime of grand larceny. On being arraigned he entered a plea of guilty to the charge made against him in the information. The petitioner was interrogated by the court for the apparent purpose of enabling the court to determine what punishment should be imposed. Certain persons were heard who urged clemency on behalf of the petitioner. The trial court deferred passing sentence until the following day. On July 23rd, the court pronounced judgment as follows: “It is the judgment of this court that you be confined to the State Work Farm at Bismarck, North Dakota, for the period of one year from noon of this day, and you are remanded to the custody of the Sheriff for transportation to the State Work Farm. The State's Attorney will prepare judgment accordingly.”

Thereafter formal judgment was entered in accordance with such oral pronouncement. On July 25, 1941, the petitioner was again brought into court. At this time he was represented by counsel. The Court stated: “On July 23, 1941, this court imposed sentence upon you, Mr. Moore, sentencing you to be confined at the State Work Farm for the period of one year, and after the imposition of such sentence I learned from the Warden of the State Penitentiary that the State Work Farm is not in readiness for the reception of prisoners and will not be before next spring, and while the State Board may transfer you from the State Work Farm to the State Penitentiary, I think it better to amend the judgment here and have it corrected. Have you any objection to such procedure?” Counsel for the petitioner made objection that the court had no further jurisdiction in the case. The court overruled the objection and rendered the following judgment: “On the 23rd day of July, 1941, T. F. Murtha, the State's Attorney in and for the County of Stark and the State of North Dakota, and the defendant came in Court and this being the day fixed by the Court for the pronouncing of judgment upon the conviction of the defendant of having committed the crime of grand larceny as charged in the information against the said defendant heretofore filed in this court; and the said defendant being informed by the court of the nature of the said information and charge against him, and of his plea thereto, and being asked whether he had any legal cause to show why judgment should not be pronounced against him and no cause being shown, the Court did adjudge, and the sentence of the court was that you, the defendant, Joe Moore, be imprisoned in the North Dakota State Farm for the term of one year, commencing at Twelve o'clock noon of that day, and it now appearing on this 25th day of July, 1941, to the Court that said North Dakota State Farm is not in readiness for the defendant and that the judgment herein should be modified and the defendant committed to the State Penitentiary instead. Now, the defendant being present in court with his counsel, it is Ordered that such judgment be so modified, there being no legal cause shown against such amendment, and the Court adjudges and its amended sentence is that you Joe Moore be imprisoned in the State Penitentiary for the term of one year from noon of July 23, 1941, and that you stand committed until the sentence is complied with and until this judgment is satisfied.”

Chapter 229, Laws 1941, provides for the establishment of a correctional institution to be known as the North Dakota State Farm. This law provides that the board having control and supervision of the penal institutions of this State shall have full control and charge of said State Farm; that it shall appoint and employ a superintendent and other necessary help and that it may assign to said Farm, in any capacity, persons employed in connection with the operation of any other institutions under the control and supervision of said board. Idem, Sec. 4. It further provides that the laws relating to the government and management of the Penitentiary “so far as the same may be applicable and not by this Act otherwise provided and not inconsistent with the purposes of this Act, shall in all respects apply to the government and management of the State Farm”. Idem, Sec. 5.

The Act further provides: Ҥ 8. When such state farm shall be equipped with facilities sufficient, in the opinion of the board having charge thereof, to receive prisoners, such board shall notify the Governor, and upon such notification, the Governor shall, by proclamation, declare the state farm ready to receive prisoners; and thereafter all judges of District Courts, and County Courts of increased jurisdiction, may commit thereto, so far as the capacity of the institution will permit, all male persons who otherwise would be committed to the County jail or to the State Penitentiary for violation of any criminal law of this State, and where the sentence is not less than thirty (30) days nor more than one year.

§ 9. The board shall have full power and authority, in the case of any prisoner committed to said State Farm for the commission of a felony, to transfer such prisoner to the State Penitentiary, and vice versa, if in the judgment of the board, such transfer is advisable. The laws relating to compensation, the merit system, good time and extra good time, and the imposition of penalties for misconduct provided by law for persons imprisoned in the State Penitentiary, shall be applicable to persons committed to the State Work Farm, except in so far as they may be inconsistent with the provisions of this Act.”

The State Farm has not been put into operation as prescribed by Section 8 of the Act, or at all. No superintendent has been named and no facilities are available for its operation as a State Work Farm.

The laws of this State provide:

“Grand larceny is punishable by imprisonment in the county jail not less than three months or in the penitentiary not exceeding ten years.” Laws 1925, Ch. 157; Section 9917, Supplement to the 1913 Compiled Laws.

“A felony is a crime which is or may be punishable with death or imprisonment in the penitentiary; every other crime is a misdemeanor. When a crime punishable by imprisonment in the penitentiary is also punishable by fine or imprisonment in a county jail, in the discretion of the court or jury, it is, except when otherwise specially declared by law to be a felony, a misdemeanor for all purposes after a judgment imposing a punishment other than imprisonment in the penitentiary.” Sees. 9197, 10387, C.L.1913.

It is contended on behalf of the petitioner:

1. That “when the court pronounced sentence on the petitioner on July 23rd, 1941, the case was to all intents and purposes completed, and the court lost all further jurisdiction in the case and over the defendant, and could not impose any other or further sentence, or modify or amend any sentence previously given”;

2. That the sentence to imprisonment at the North Dakota State Farm, an institution that “had not come into existence”; (“there being no such place” as the North Dakota State Farm to which prisoners might be sentenced or committed, under the laws of the State on July 23rd, 1941), was and is a nullity, and the petitioner, having been so sentenced, is entitled to be discharged “at least from that particular sentence”;

3. That under the provisions of Sections 9197 and 10387, C.L.1913, the sentence imposed on the petitioner on July 23, 1941 (being a sentence imposing a punishment other than imprisonment in the penitentiary), operated to make the crime for which the petitioner was sentenced a misdemeanor, and...