Hawk v. O'Grady

• Decision Date: 08 March 1940
• Docket Number: 30708.
• Citation: 290 N.W. 911,137 Neb. 639
• Parties: HAWK v. O'GRADY, WARDEN.
• Court: Nebraska Supreme Court

290 N.W. 911

137 Neb. 639

HAWK v. O'GRADY, WARDEN.

No. 30708.

Supreme Court of Nebraska.

March 8, 1940

Syllabus by the Court.

1. " On an application for a writ of habeas corpus, errors or irregularities in the criminal trial, not jurisdictional will not be considered." In re Fanton, 55 Neb 703, 76 N.W. 447, 70 Am.St.Rep. 418.

2. To obtain a release by habeas corpus, the judgment or sentence must be an absolute nullity.

3. The sentence in the instant case, imposing punishment by confinement in the state penitentiary, is regular and in strict accord with the statutes.

Appeal from District Court, Lancaster County Shepherd, Judge.

Habeas corpus proceeding by Henry Hawk against Joseph O'Grady, Warden of the Nebraska State Penitentiary at Lancaster, Lancaster County, Nebraska. From an adverse judgment, the petitioner appeals.

Affirmed.

Sentence providing that defendant was convicted of first-degree murder while attempting to rob, and that he should be imprisoned in the state penitentiary at hard labor during the term of his natural life, was regular.

Henry Hawk, pro se.

Walter R. Johnson, Atty. Gen., and Geo. W. Ayres, Asst. Atty. Gen., for appellee.

Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, MESSMORE, and JOHNSEN, JJ.

EBERLY, Justice.

Henry Hawk, this record discloses, presented his petition for a writ of habeas corpus to the district court for Lancaster county. On the basis that the petition was wholly insufficient to constitute a cause of action, the prayer of the same was denied. Hawk appeals.

From the record before us, it appears that Henry Hawk was convicted in the district court for Douglas county, Nebraska, of " First Degree Murder while attempting to rob," and on March 19, 1936, it was considered, ordered and adjudged by that court " that the defendant, Henry Hawk * * * be returned to the Federal Penitentiary at Leavenworth, Kansas, and at the expiration of the sentence he is now serving therein, he be by the warden of the said Federal Penitentiary delivered into the custody of the sheriff of Douglas county, Nebraska, and be taken by said sheriff to the Nebraska State Penitentiary at Lincoln, Nebraska, and that said defendant be there imprisoned at hard labor during the term of his natural life, * * *." (Italics ours.)

At the time of his trial and sentence in the district court for Douglas county, Hawk was under sentence imposed by the federal court. The order made by the state court was no more than a mere recognition of that fact, consistent with comity which prevails between these jurisdictions. The valid sentence imposed by the district...