Ex parte Newcomb

• Decision Date: 18 December 1909
• Citation: 56 Wash. 395,105 P. 1042
• Court: Washington Supreme Court
• Parties: Ex parte NEWCOMB.

105 P. 1042

56 Wash. 395

Ex parte NEWCOMB.

Supreme Court of Washington, En Banc.

December 18, 1909

Application of Susan S. Newcomb for a writ of habeas corpus for Charles F. Newcomb. Denied.

Murray & Lefebvre, A. A. Howell, J. Matthew Murray, and Louis I. Lefebvre, for petitioner.

W. P Bell and J. L. McMurray, for respondent.

RUDKIN C.J.

Charles F. Newcomb was convicted of the crime of murder in the first degree in the superior court of Pierce county, and is now in custody on process issued on the final judgment of that court. He has petitioned this court for a writ of habeas corpus, alleging that his restraint and imprisonment are illegal, in this: First because the jury law of 1909 (Laws 1909, p. 131, c. 73) under which the jury was drawn and selected, is unconstitutional; second, because department No. 3 of the superior court of Pierce county, presided over by Judge Chapman, had no jurisdiction to try him; and, third, because on the 14th day of May, 1909, the date of the homicide, there was no law in this state defining or prescribing punishment for the crime of murder.

Errors and irregularities such as those complained of cannot be inquired into or corrected on an application of this kind. Our statute provides that: 'No court or judge shall inquire into the legality of any judgment or process whereby the party is in custody, or discharge him, when the term of commitment has not expired, in either of the cases following: (1) Upon any process issued on any final judgment of a court of competent jurisdiction. * * * (3) Upon a warrant issued from the superior court upon an indictment or information.' Ballinger's Ann. Codes & St. § 5826 (Pierce's Code, § 1376). 'A habeas corpus is not a writ of error. It cannot bring a case before us in such a manner that we can exercise any kind of appellate jurisdiction in it. On a habeas corpus, the judgment of even a subordinate court cannot be disregarded, reversed, or set aside, however clearly we may perceive it to be erroneous, and however plain it may be that we ought to reverse it if it were before us on appeal or writ of error. We can only look at the record to see whether a judgment exists, and have no power to say whether it is right or wrong. It is conclusively presumed to be right until it is regularly brought up for revision. We decided this three years ago at Sunbury, in a case which we all thought one of much hardship; but the rule is so familiar, so universally acknowledged, and so reasonable in itself, that it requires only to be stated.' Passmore Williamson's Case, 26 Pa. 9, 67 Am. Dec. 374; Ex parte Winston, 9 Nev. 71. All the courts acknowledge the existence and binding force of this general rule; but when we come to consider what constitutes error, and what constitutes a want of jurisdiction, they differ widely. The error complained of in the matter of drawing and selecting the jury manifestly did not go to the jurisdiction of the court, and cannot be considered at this time. United States v. Gale, 109 U.S. 65, 3 S.Ct. 1, 27 L.Ed. 857; In re Wilson, 140 U.S. 575, 11 S.Ct. 870, 35 L.Ed. 513; Younger v. Hehn, 12 Wyo. 289, 75 P. 443, 109 Am. St. Rep. 986; In re Barbee, 19 Wash. 306, 53 P. 155.

The objection to the jurisdiction of Judge Chapman is equally untenable. There is but one superior court of Pierce county, and all the judges of that court are equal in authority. The entire trial took place before Judge Chapman, and the fact that preliminary orders were made by other judges or in other departments is immaterial and did not affect the jurisdiction of the court. Numerous questions have been discussed under the contention that there was no law in this state on May 14th of this year defining or prescribing punishment for the crime of murder. We do not deem it proper to go into that question at this time further than is necessary to present the question with which the trial court was confronted. Section 7035, Ballinger's Ann. Codes & St. (Pierce's Code, § 1554) defining the crime of 'murder in the first degree,' was in full force and effect on that date; but its prospective operation as a law ceased as soon as the New Criminal Code took effect, 90 days after the adjournment of the Legislature. There is no question of ex post facto laws in this case. Section 42 of the New Criminal Code expressly provides that 'nothing contained in any provision of this act shall apply to an offense committed or act done at any time before the day when this act shall take effect,' and, in the light of this provision, any discussion of the constitutionality of ex post facto laws is beside the question.

The question, and the only question, before the trial court on this branch of the case, was this: Was section 7035 Ballinger's Ann. Codes & St. (Pierce's Code, § 1554), continued in force, as to the particular offense here involved, by virtue of either the saving clause found in section 42 of the New Criminal Code, or the general saving clause enacted at the extraordinary session of 1901 (Laws 1901, Sp. Sess., p. 13, c. 6)? The superior court was vested with full and complete jurisdiction to determine that question, and, whether its determination was right or wrong, its jurisdiction to hear the case continued, and its final judgment is not void. The authorities are by no means agreed upon the proposition; but in our opinion, if a court of general jurisdiction determines a question of law or fact properly before it in the exercise of its acknowledged jurisdiction, its determination cannot be void, however erroneous it may be. In Ex parte Watkins, 3 Pet. 193, 7 L.Ed. 650, Chief Justice Marshall said: 'An imprisonment under a judgment cannot be unlawful, unless that judgment be an absolute nullity; and it is not a nullity if the court has general jurisdiction of the subject, although it should be erroneous. The Circuit Court for the District of Columbia is a court of record, having a general jurisdiction over criminal cases. An offense cognizable in any court is cognizable in that court. If the offense be punishable by law, that court is competent to inflict the punishment. The judgment of such a tribunal has all the obligation which the judgment of any tribunal can have. To determine whether the offense charged in the indictment be legally punishable or not is among the most unquestionable of its powers and duties. The decision of this question is the exercise of jurisdiction, whether the judgment be for or against the prisoner. The judgment is equally binding in the one case and in the other, and must remain in full force unless reversed regularly by a superior court capable of reversing it. If this judgment be obligatory, no court can look behind it. If it be a nullity, the officer who obeys it is guilty of false imprisonment. Would the counsel for the prisoner attempt to maintain this position? * * * The judgment of the circuit court in a criminal case is of itself evidence of its own legality, and requires for its support no inspection of the indictments on which it is founded. The law trusts that court with the whole subject, and has not confided to this court the power of revising its decisions. We cannot usurp that power by the instrumentality of the writ of habeas corpus. The judgment informs us that the commitment is legal, and with that information it is our duty to be satisfied.' In Ex parte Parks, 93 U.S. 18, 23 L.Ed. 787, Mr. Justice Bradley said: 'But the question whether it was or was not a crime within the statute was one which the District Court was competent to decide. It was before the court, and within its jurisdiction. No other court, except the Circuit Court for the same district having concurrent jurisdiction, was as competent to decide the question as the District Court. Whether an act charged in an indictment is or is not a crime by the law which the court administers (in this case the statute law of the United States) is a question which has to be met at almost every stage of criminal proceedings. On motion to quash the indictment, on demurrers, on motions to arrest judgment, etc., the court may err; but it has jurisdiction of the question. If it errs, there is no remedy after final judgment, unless a writ of error lies to some superior court; and no such writ lies in this case. It would be an assumption of authority for this court by means of the writ of habeas corpus to review every case in which the defendant attempts to controvert the criminality of the offense charged in the indictment.' In Commonwealth ex rel. Davis v. Lecky, 1 Watts (Pa.) 66, 26 Am. Dec. 37, Chief Justice Gibson said: 'The habeas corpus is undoubtedly an immediate remedy for every illegal imprisonment; but no imprisonment is illegal when the process is the justification of the officer, and process, whether by writ or warrant, is legal whenever it is not defective in the form of it, and has issued in the ordinary course of justice from a court or magistrate having jurisdiction of the subject-matter, though there may have been error or irregularity in the proceedings previous to the issuing of it.' In the Williamson Case, supra, Judge Black said: 'Every judgment must be conclusive until reversed. Such is the character, nature, and essence of all judgments. If it be not conclusive, it is no judgment. A court must either have power to settle a question finally and forever, so as to preclude any further inquiry into it, or else it has no power to make any decision at all. To say that a court may determine a matter, and that another court may regard the same matter afterwards as open and undetermined, is an absurdity in terms.' See, also: In re Bigelow, 113 U.S. 328, 5 S.Ct. 542, 28 L.Ed. 1005; In re Belt, 159 U.S. 95, 15 S.Ct. 987, 40 L.Ed. 88; In re Eckart, 166 U.S. 481, 17 S.Ct. 638, 41...