Hickman v. Fenton

• Decision Date: 03 July 1930
• Docket Number: 27423
• Citation: 231 N.W. 510,120 Neb. 66
• Parties: EDWARD HICKMAN, APPELLEE, v. W. T. FENTON, WARDEN, APPELLANT
• Court: Nebraska Supreme Court

231 N.W. 510

120 Neb. 66

EDWARD HICKMAN, APPELLEE, v. W. T. FENTON, WARDEN, APPELLANT

No. 27423

Supreme Court of Nebraska

July 3, 1930

APPEAL from the district court for Lancaster county: LINCOLN FROST JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

Upon a plea of guilty under an information charging a felony, where proceedings thus far are free from error and where the trial court has jurisdiction of the accused and of the subject-matter of the prosecution, a penitentiary sentence for less than the minimum term prescribed by statute is not void, and after it has been partially served in absence of an appellate review, the trial court is without power to vacate it and impose a greater penalty.

Appeal from District Court, Lancaster County; Frost, Judge.

Application for writ of habeas corpus by Edward Hickman for release from the custody of W. T. Fenton, Warden of the State Penitentiary. From a judgment granting relief, the Warden appeals.

Affirmed.

C. A. Sorensen, Attorney General, and George W. Ayres, for appellant.

Adams & Adams, contra.

Heard before GOSS, C. J., ROSE, DEAN, GOOD, THOMPSON, EBERLY and DAY, JJ.

OPINION

ROSE, J.

This is an application for a writ of habeas corpus. Edward Hickman petitioned the district court for Lancaster county to release him from the custody of the warden of the state penitentiary. From a judgment granting the relief prayed the warden appealed.

The question presented by the appeal is the legality of the detention. Following is a chronology of events: March 14, 1924, petitioner, in a prosecution by the state in the district court for Douglas county, pleaded guilty to the charge of incest and for that felony was sentenced to imprisonment in the state penitentiary for a term of not less than three nor more than five years; March 14, 1924, to April 26, 1924, 43 days, imprisoned under the sentence in the jail of Douglas county, awaiting transfer to penitentiary; April 26, 1924, again taken before the district court for Douglas county, sentence vacated, rearraignment on same charge, plea of guilty, sentence to penitentiary for 25 years; April 26, 1924, returned to county jail, taken therefrom to penitentiary and thereafter detained by warden as commanded by mittimus under first sentence until it expired and subsequently detained under mittimus issued September 30, 1927, pursuant to second sentence; January 18, 1930, petition for habeas corpus filed in district court for Lancaster county; January 24, 1930, petitioner released.

The warden contends that the first sentence was void and that the trial court had power to set it aside and impose a lawful sentence at the same term of court and that consequently accused was not twice in jeopardy for the same offense and not entitled to his liberty, since his term under the second and only valid sentence has not yet expired.

Petitioner insists that the district court for Douglas county had jurisdiction to sentence him in the first instance upon his plea of guilty; that there was no appellate review of the sentence first pronounced and that he was imprisoned 43 days thereunder; that the second sentence was void for want of jurisdiction to pronounce it, as otherwise it would place him twice in jeopardy for the same offense in violation of the Constitution. Const. art I, sec. 2.

There is nothing in the record to show any defect or irregularity in the proceedings prior to the time the first sentence was pronounced. The criminal court then had jurisdiction of the person of accused and of the subject-matter of the prosecution. Directly from the Constitution of Nebraska the presiding judge had power to accept the plea of guilty and to pass upon him the sentence authorized by law. Const. art V, sec. 9. Erroneous exercise of that power was contemplated by the framers of the Constitution and by the people who adopted it, as shown by their declaration that "The writ of error shall be a writ of right in all cases of felony." Const. art I, sec. 23. Power to accept the plea of guilty and to sentence accused was exercised in the present instance and resulted in the indeterminate sentence of three to five years and in imprisonment for that term, though the minimum period fixed by statute was 20 years for the offense charged. Accused did not procure a writ of error or challenge the jurisdiction of the court to impose the first sentence but under it served 43 days in the Douglas county jail, his term dating from the sentence and not from the time he was delivered to the warden. Comp. St. 1922, sec. 10195; In re Fuller, 34 Neb. 581, 52 N.W. 577.

The source of power to vacate a penitentiary sentence after a portion of it has been served and to impose a new and greater penalty under the same charge has not been pointed out, except in cases of void sentences and in cases where the convict himself applied for a rehearing or invoked appellate jurisdiction for the correction of errors. A reviewer of the cases in which this subject was judicially discussed said:

"It seems to be well established that a trial court is without power to set aside a sentence after the defendant has been committed thereunder, and impose a new or different sentence increasing the punishment, even at the same term at which the original sentence was imposed. A judgment which attempts to do so is void, and the original judgment remains in force." 44 A. L. R. 1203.

Following the doctrine thus stated, many cases from different jurisdictions are cited in the note, including In re Jones, 35...