Ex parte Tani

• Decision Date: 30 July 1907
• Docket Number: 1,721.
• Citation: 91 P. 137,29 Nev. 385
• Parties: Ex parte TANI.
• Court: Nevada Supreme Court

91 P. 137

29 Nev. 385

Ex parte TANI.

No. 1,721.

Supreme Court of Nevada

July 30, 1907

Application by S. Tani for a writ of habeas corpus against the warden of the state prison. Denied, and the warden of the state prison directed to deliver petitioner to the sheriff of Washoe county, to be by him detained in the county jail for the remainder of the term of imprisonment imposed by his sentence, unless the part of the fine remaining unsatisfied be sooner paid.

Benj. Curler, for petitioner.

R. C Stoddard, Atty. Gen., for the State.

TALBOT C.J.

Defendant was indicted for the crime of assault with intent to kill. He entered a plea of guilty of assault with a deadly weapon with intent to inflict upon the person of another a bodily injury where no considerable provocation appears, and the sentence of the court was that he be fined $1,000, and, in the event the fine be not paid, that he be imprisoned in the state prison for a period of 500 days, or one day for each and every $2 of the fine not satisfied. No payment being made, he was committed to the custody of the warden of the state prison, and now asks to be released by writ of habeas corpus asserting that the district court was without jurisdiction to confine him in that institution, and that therefore the sentence is void.

Section 4701 of the Compiled Laws of Nevada provides: "An assault with a deadly weapon, instrument, or other thing with an intent to inflict upon the person of another a bodily injury, where no considerable provocation appears, or where the circumstances of the assault show an abandoned and malignant heart, shall subject the offender to imprisonment in the state prison not less than one year, or exceeding two years, or to a fine not less than one thousand nor exceeding five thousand dollars, or to both such fine and imprisonment." Section 3988: "A felony is a public offense punishable with death, or by imprisonment in the territorial prison." Section 4413: "A judgment that the defendant pay a fine may also direct that he be imprisoned until the fine be satisfied, specifying the extent of the imprisonment, which shall not exceed one day for every two dollars of the fine, or in that proportion." Section 4418: "If the judgment be imprisonment, or a fine and imprisonment until it be satisfied, the defendant shall forthwith be committed to the custody of the proper officer, and by him detained until the judgment be complied with." Section 4646: "If the fine be not paid the court may order the defendant to be imprisoned one day for each two dollars of the fine not paid." Section 2267: "Whenever any prisoner, under conviction for any criminal offense, shall be confined in jail for any inability to pay any fine, forfeiture, or costs, or to procure sureties, the district court, upon satisfactory evidence of such inability, may, in lieu thereof, confine such person in the county jail, at the rate of two dollars per day, until the fine, forfeiture, or cost so imposed shall have been satisfied." Section 3761 provides that it shall be the duty of the judge hearing the writ of habeas corpus, "if the time during which such party may be legally detained in custody has not expired, to remand such party, if it shall appear that he is detained in custody by virtue of the final judgment or decree of any competent court of criminal jurisdiction, or of any process issued upon such judgment or decree, or in cases of contempt of court"; and section 3762 that: "If it appears on the return of the writ of habeas corpus that the prisoner is in custody by virtue of process from any court of this territory, or judge or officer thereof, such prisoner may be discharged, in any one of the following cases, subject to the restrictions of the last preceding section: First-When the jurisdiction of such court or officer has been exceeded. Second-When the imprisonment was at first lawful, yet by some act, omission, or event, which has taken place afterwards, the party has become entitled to be discharged. Third-When the process is defective in some matter of substance required by law, rendering such process void. Fourth-When the process, though proper in form, has been issued in a case not allowed by law. Fifth-When the person having the custody of the prisoner is not the person allowed by law to detain him. Sixth-Where the process is not authorized by any judgment, order, or decree of any court, nor by any provision of law."

On behalf of petitioner, it is urged that under section 2267 the district court was without jurisdiction to order the defendant imprisoned in any place other than the county jail, and that the direction in the judgment that he be confined in the state prison, in lieu of payment of the fine, was unauthorized and rendered the whole judgment void. Of the cases relied upon by him the first four following support this contention: In Ex parte Page, 49 Mo. 291, the sentence of 10 years for grand larceny was excessive, and it was held that the court had no power to reduce the term of imprisonment so as to bring it within the statutory limit, and the prisoner was discharged. In Ex parte Cox, 32 P. 197, 3 Idaho (Hasb.) 530, 95 Am. St. Rep. 29, an Idaho case, defendant was convicted of an assault with a deadly weapon likely to produce great bodily harm, and sentenced to confinement in the state prison for the term of five years, when the statutory penalty was imprisonment not exceeding two years, or a fine of $5,000, or both. The judgment was declared void, and the petitioner released. In Ex parte Kelly, 65 Cal. 154, 3 P. 673, it was held that the portion of the judgment requiring the performance of labor on the streets was not authorized, that the judgment was a unit, and that this portion of it, being without the jurisdiction of the court, made the whole void. Ex parte Bernert, 62 Cal. 524, is of similar effect.

But the views of the courts regarding the proposition involved are as numerous and varied as the different liquors from the magician's bottle. The most of the decisions, and especially those more in consonance with reason and justice, are averse to the discharge of criminals who have been duly convicted when the application for their release is by petition for habeas corpus based on some error, omission, or mistake in the sentence which might have been cured or corrected by writ of error or appeal. As we shall see, the Supreme Court of California has not always been consistent in its opinions, and the doctrine advanced by the foregoing cases has been severely criticised by the Supreme Courts of the United States, of Pennsylvania, and Massachusetts, and is contrary to the weight of authority.

In Ex parte Max, 44 Cal. 580, it was said: "The application for the writ of habeas corpus made here proceeds upon the ground that the judgment, under the circumstances appearing, is not merely erroneous, but is void in the absolute sense, and so affords no authority to the warden of the prison to detain the petitioner. We are of opinion, however, that the position cannot be maintained. The indictment upon which the judgment is founded is sufficient in all respects. The offense of which the petitioner was convicted was one within the scope of the indictment, and the judgment one which the county court had the authority to render upon the appearance and plea of the petitioner. These conditions constitute jurisdiction. All others involve questions of mere error, and the latter cannot be inquired into upon writ of habeas corpus, but only upon proceedings in error. The obvious distinction between the office of a writ of error or an appeal, on the one hand, and a writ of habeas corpus upon the other, was not presented, but was overlooked in Ex parte Ah Cha et al., 40 Cal. 426, which was a writ of habeas corpus heard and determined at chambers, and that case must in that respect be overruled."

In Ex parte Mooney, 26 W.Va. 36, 53 Am. Rep. 59, it was held that, where the court has jurisdiction of the subject-matter and of the person, and pronounces a severable judgment or sentence, one part of which is authorized by law, and another distinct part which is not 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. It was said that, as to that part which the court had the power to pronounce, the sentence was valid upon proceeding for habeas corpus; that errors which rendered the judgment merely voidable and not absolutely void could not be inquired into under such a writ (citing In re Prime, 1 Barb. [N. Y.] 340; State v. Shattuck, 45 N.H. 211; Ross' Case, 2 Pick. 171; Ex parte Watkins, 3 Pet. [U. S.] 201, 7 L.Ed. 650), and that, if the judgment is in excess of that which the court rendering it by law had the power to pronounce, such judgment is void for the excess only (citing Brook's Case, 4 Leigh [Va.] 669; Murry's Case, 5 Leigh [Va.] 724; Hall's Case, 6 Leigh [Va.] 615, 29 Am. Dec. 236; People v. Liscomb, 60 N.Y. 560, 19 Am. Rep. 211; Feeley's Case, 12 Cush. [Mass.] 598; Ex parte Shaw, 7 Ohio St. 81, 70 Am. Dec. 55; People v. Markham, 7 Cal. 208; People v. Baker, 89 N.Y. 467). At page 43 of 26 W. Va., in regard to the Missouri case (Ex parte Page) relied upon here by petitioner and cited above, it was said: "But, if that case could be regarded as decided upon principle, it must be disapproved, since it is not only contrary to the general rules hereinbefore stated, but it is in positive conflict with numerous other and seemingly better considered decisions of courts of other states. In re Petty, 22 Kan. 277; Ex parte Parks, 93 U.S. 18, 23 L.Ed. 787; People v. Jacobs, 66 N.Y. 9; People v. Liscomb, 60 N.Y. 559, 19 Am. Rep. 211; People v. Baker, 89 N.Y. 460."

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