In re Albert Bates, 6998

• Court: United States State Supreme Court of Idaho
• Citation: 125 P.2d 1017,63 Idaho 748
• Docket Number: 6998
• Parties: IN RE ALBERT BATES
• Decision Date: 12 May 1942

125 P.2d 1017

63 Idaho 748

IN RE ALBERT BATES

No. 6998

Supreme Court of Idaho

May 12, 1942

DISTRICT COURTS-JURISDICTION OF-CRIMINAL LAW-PERSISTENT VIOLATORS OF LAW-INDICTMENTS AND INFORMATIONS-HABEAS CORPUS.

1. A district court is a "competent court of criminal jurisdiction" within statute requiring remand of habeas corpus petitioner if he is detained in custody by virtue of final judgment of any competent court of criminal jurisdiction, and district court had jurisdiction of defendant charged with grand larceny who was present in court and participated in proceedings. (I. C. A. sec. 19-4314.)

2. Under statute providing that person convicted of felony for third time shall be considered a persistent violator of law, the third conviction of a felony does not constitute a "crime" but renders person convicted liable to punishment in excess of that which might have been inflicted on him had he not been twice previously convicted. (I. C. A. sec. 19-2414.)

3. An information charging grand larceny was required to charge that accused was a persistent violator of law, in order to authorize judge to impose sentence provided for a persistent violator. (I. C. A. sec. 19-2414.)

4. The magistrate's order that accused charged with grand larceny and with being a persistent violator of law should be held to answer in district court to charge of being a persistent violator of law instead of grand larceny of which he was accused in amended criminal complaint and in information was erroneous. (I. C. A. sec. 19-2414.)

5. A defendant "waived" irregularity in magistrate's order that defendant who was charged with grand larceny and of [63 Idaho 749] being a persistent violator of law should be held to answer in district court to a charge of being a persistent violator of law, by not objecting before his plea was entered, and could not complain thereof on petition for writ of habeas corpus. (I. C. A. sec. 19-2414.)

The foregoing syllabus is by West Publishing Company, that following is by the author of the opinion.

I. A district court, in Idaho, is a court of "competent criminal jurisdiction," within the meaning of I. C. A., 19-4314, and has jurisdiction of a person charged with grand larceny, by indictment or information, who is present in court and participates in the proceedings thereof with respect to such charge.

II. The third conviction of a person, of a felony, does not constitute a crime, but does render him liable for punishment in excess of that which might have been inflicted on him had he not been twice previously convicted.

III. Where one charged with grand larceny and of being a persistent violator of law is, by order of the magistrate, held to answer in the district court, to the charge of being a persistent violator of law, the order is irregular and erroneous. One so held to answer, desiring to avail himself of such irregularity, must do so before his plea to the indictment or information, charging him with grand larceny and of being a persistent violator of law, is entered, or he will be held to have waived his right to do so. After his conviction, the error in his commitment is not available to him on petition for writ of habeas corpus.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles E. Winstead, Judge.

Appeal from an order of the district court, in a habeas corpus proceeding, remanding appellant to the custody of the warden of the penitentiary. Affirmed.

Affirmed.

J. F. Cromwell and Smith & Ewing, for Appellant.

The question of the trial court's jurisdiction over the offense or subject matter can be raised by the accused at any time after final judgment and may be raised for the first time in a proper proceedings for a Writ of Habeas Corpus. (In Re: Knudtson, 10 Idaho 676, 79 P. 641; Ex--P--O'Connor (29 Cal. A 225) 155 P. 115; Kingen v. Kelley (3 Wyo. 566) 28 P. 36, 15 L. R. A., 177; People v. Simon (284 Ill. 28) 119 N.E. 940; Kelley v. Meyers (Oregon) 263 P. 903; 66 A. L. R. 661; In Re: Nielsen 151 U.S. 176, 33 L.Ed. 118; 29 C. J. 30, Sec. 20.)

V. K. Jeppesen, Prosecuting Attorney for Canyon County, Idaho, and Bert H. Miller, Attorney General, for Respondent.

Where the Court has jurisdiction of the person and might under some circumstances render the judgment or sentence imposed, then any error is judicial, not jurisdictional, and should have been...