In re Albert Bates

Decision Date12 May 1942
Docket Number6998
Citation125 P.2d 1017,63 Idaho 748
PartiesIN RE ALBERT BATES
CourtIdaho Supreme Court

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 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 reached by demurrer, motion, or appeal, not by habeas corpus. (19-1501 I. C. A.; 19-1502 I. C. A.; in re Davis, 23 Idaho 473 130 P. 786; Servonitz v. State, (Wis.) 113 N.W. 277; Ex parte McConnell (Cal.) 23 P. 1119.)

Final judgment of conviction will not be set aside in any event where any defect or imperfection in the proceedings do not prejudice a substantial right of the accused upon the merits of the cause. (Section 19-1319 I. C. A.; State v. Montgomery, 48 Idaho 760 285 P. 467; State v. Ellington, 4 Idaho 529 43 P. 60.)

MORGAN, J. Givens, C. J., and Budge, Holden, and Ailshie, JJ., concur.

OPINION

MORGAN, J.

January 21, 1941, the prosecuting attorney of Canyon County appeared before a justice of the peace thereof and verified and filed an amended criminal complaint wherein he accused Albert Bates, appellant herein, of the crime of grand larceny and of being a persistent violator of law. Thereafter a preliminary examination was held before a justice of the peace, sitting as a magistrate, which resulted in an order that appellant answer in the District Court of the Seventh Judicial District, for Canyon County, to the charge of being a persistent violator of law.

The prosecuting attorney filed an information in the district court accusing appellant of grand larceny and of being a persistent violator of law. A trial resulted in a verdict of guilty as charged in the information. Judgment of conviction was entered, wherein he was sentenced to imprisonment in the penitentiary for a term of not less than five years nor more than twenty years. Appellant was incarcerated in the penitentiary pursuant to a commitment issued by the district court, February 21, 1941, wherein appears the following:

"AND THIS IS TO COMMAND YOU, The said Warden, and other officers in charge of the Penitentiary of the State of Idaho aforesaid, to receive of and from the Sheriff of the County of Canyon the said Albert Bates convicted and sentenced as aforesaid and he, the said Albert Bates, keep and imprison in the said Penitentiary of the State of Idaho, for the term of not less than five (5) nor more than Twenty (20) years.

"And these presents shall be your authority for the same. Herein fail not."

Appellant petitioned the District Court of the Third Judicial District, for Ada County, for a writ of habeas corpus, which was granted. The warden made return on the writ wherein he alleged that he held appellant as a prisoner, in the penitentiary, by virtue of the judgment and commitment of the District Court of the Seventh Judicial District, for Canyon County, and accompanied his return with a certified copy of the commitment. He also produced appellant in court. Appellant made answer to the return, and hearing thereon was had which resulted in the order, remanding him to the custody of the warden, from which this appeal has been taken.

Appellant's contention is disclosed, for the first time, by the following paragraphs in his petition for writ of habeas corpus:

That by said ORDER of the Justice of the Peace, as aforesaid, the said Albert Bates was held to answer in the said District Court to a charge of being a persistent violator of law, and that the information filed against him, as aforesaid, charged him with the crime of Grand Larceny. That the District Court before which he was tried on said charge of Grand Larceny exceeded its...

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15 cases
  • Walker v. State
    • United States
    • Idaho Supreme Court
    • 7 Noviembre 1968
    ...a kind that the District Judge could completely resolve by drawing upon his own personal knowledge or recollection.' 1 In re Bates, 63 Idaho 748, 125 P.2d 1017 (1942); Ford v. United States, 273 U.S. 593, 606, 47 S.Ct. 531, 71 L.Ed. 793 (1927); Cox v. United States, 351 F.2d 280 (8th Cir. 1......
  • State v. Johnson
    • United States
    • Idaho Supreme Court
    • 25 Junio 1963
    ...liable to punishment in excess of that which might have been inflicted upon him had he not been twice previously convicted. In re Bates, 63 Idaho 748, 125 P.2d 1017. See also, State v. Owen, 73 Idaho 394, 253 P.2d 203; Little v. Gladden, 202 Or. 16, 273 P.2d 443; State v. Messmore, 175 Kan.......
  • Martin, Application of
    • United States
    • Idaho Supreme Court
    • 8 Febrero 1955
    ...877; In re Davis, 23 Idaho 473, 130 P. 786; In re Lowe, 50 Idaho 602, 298 P. 940; In re Tierney, 51 Idaho 279, 5 P.2d 539; In re Bates, 63 Idaho 748, 125 P.2d 1017. The general rule has been somewhat relaxed. In In re Irish, 51 Idaho 604, 9 P.2d 501, the court held that 'The showing disclos......
  • Clark v. State
    • United States
    • Idaho Supreme Court
    • 17 Marzo 1969
    ...for the latest conviction, than that which might have been inflicted had there not been two prior convictions. See In re Bates, 63 Idaho 748, 125 P.2d 1017 (1942); cf. I.C. § 19-2514; State v. Johnson, 86 Idaho 51, 383 P.2d 326 (1963). Hence Clark's petition was directed against the Minidok......
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