In re Application of Allen

• Citation: 31 Idaho 295,170 P. 921
• Parties: In the Matter of the Application of O. V. ALLEN for a Writ of Habeas Corpus
• Decision Date: 05 February 1918
• Court: United States State Supreme Court of Idaho

170 P. 921

31 Idaho 295

In the Matter of the Application of O. V. ALLEN for a Writ of Habeas Corpus

Supreme Court of Idaho

February 5, 1918

HABEAS CORPUS-RECORD OF CONVICTION-JURISDICTION-PRESIDING JUDGE-PROCEEDINGS-REGULARITY OF COLOR OF AUTHORITY-COLLATERAL ATTACK.

1. Habeas corpus is a collateral remedy, and in an assault upon the judgment of a court of general jurisdiction, nothing to the contrary appearing in the record, it will be conclusively presumed, in support of a motion to quash the writ, that the court had full jurisdiction of the person and of the subject matter, and that all the proceedings were according to law.

2. Where a district judge from one district holds court in another district and no question is raised as to his authority, it will be conclusively presumed, unless the record discloses to the contrary, that he was lawfully exercising jurisdiction.

3. Such jurisdiction is exercised under color of authority and is not open to collateral attack.

4. The entries contained in the record of a trial in a court of general jurisdiction import verity, and they cannot be questioned on habeas corpus.

5. Where the constitution or statutes require an act to be done and there is no statute expressly requiring a record to be kept of it, the conclusive presumption is, when the record is silent upon the point, that the proceedings were regular and that the law was complied with.

Original proceedings on petition for writ of habeas corpus. Writ quashed.

Richards & Haga and George C. Huebener, for Applicant.

While the jurisdiction of our district court is presumed, being a court of general jurisdiction, this presumption is not conclusive. (People v. Robinson, 17 Cal. 363.)

The mere fact that the record made by Judge Bryan recites that which was not true does not exclude the defendant from showing the truth by the very judges themselves who were there to preside legally and rightfully. We can supplement this record by showing that these judges were not absent in the sense required by the statute. (9 Ency. of Evidence, 933; Cook v. Renick, 19 Ill. 598; Low v. State, 111 Tenn. 81, 78 S.W. 110; Ex parte Fish (Mo. App.), 184 S.W 479; Matter of Divine, 21 How. Pr. (N. Y.) 80; Burlington University v. Executors of Stewart, 12 Iowa 442.)

The presumption of regularity of the proceeding of a special judge or the holding of a special term only prevails until the contrary is shown. (Talbert v. Hopper, 42 Cal 397; People v. Mellon, 40 Cal. 648; Ex parte Alabama State Bar Assn., 92 Ala. 113, 8 So. 768, 12 L. R. A. 134.)

"In all cases, when the facts going to the jurisdiction do not appear on the record, the plaintiff may for the purpose of impeaching the jurisdiction show the facts as they existed." (Browne on Jurisdiction, sec. 104.)

The petition for the writ shows that neither of the judges of the third district were absent therefrom or unable to sit. Judge Bryan's acts were null and void and in excess of jurisdiction. (Low v. State, 111 Tenn. 81, 78 S.W 110.)

The condition precedent must be complied with. In the case at bar no reason for the disqualification of either Judges McCarthy or Davis is given in the record. (Smith v. State, 24 Tex. App. 290, 6 S.W. 40; Perry v. State, 14 Tex. App. 166; Harris v. State, 14 Tex. App. 676; Oates v. State, 56 Tex. Cr. 571, 121 S.W. 370; Kennedy v. State, 53 Ind. 542; Commonwealth v. Fay, 151 Mass. 380, 24 N.E. 201; Brinkley v. Harkins, 48 Tex. 225; Hangar v. Commonwealth, 107 Va. 872, 60 S.E. 67, 14 L. R. A., N. S., 684; Commonwealth v. Kane, 108 Mass. 423, 11 Am. Rep. 373; Browne on Jurisdiction, sec. 104, p. 379; Morrill v. Morrill, 20 Ore. 96, 23 Am. St. 95, 110, 25 P. 362, 11 L. R. A. 155; Ex parte Lacy, 93 Va. 159, 24 S.E. 930, 31 L. R. A. 822; Dulin v. Lillard, 91 Va. 718, 20 S.E. 821.)

"Jurisdictional questions disclosed by the record are never waived, and can be raised at any time before or after trial in a motion in arrest of judgment, or even for the first time in the appellate court." (Gibbons v. Territory, 5 Okla. Cr. 212, 115 P. 129; Grocers' Nat. Bank v. Clark, 31 How. Pr. (N. Y.) 115.)

T. A. Walters, Atty. Genl., and J. P. Pope, Assistant, for State.

A writ of habeas corpus will not be issued to release a prisoner sentenced by a judge de facto. (Ex parte Ward, 173 U.S. 452, 19 S.Ct. 459, 43 L.Ed. 765.)

Where the record of the district court is silent as to whether the statutory requirements have been performed, the presumption is that the proceedings were regular and that the law was complied with. (State v. Lottridge, 29 Idaho 53, 155 P. 487; Green v. Walker, 99 Mo. 68, 12 S.W. 353.)

"The records of a court of record where made pursuant to law import absolute verity and cannot be contradicted within the jurisdiction of such court." (11 Cyc. 765; Ex parte Fish (Mo. App.), 184 S.W. 479; People v. Judge Tenth Judicial District, 9 Cal. 19; Hanley v. State, 50 Fla. 82, 39 So. 149; Havird v. County Commissioners, 2 Idaho 687, 24 P. 542; People v. Mellon, 40 Cal. 648.)

"A writ of habeas corpus is a collateral remedy, and in an assault upon the judgment of a court of competent jurisdiction we must, in the absence of any showing to the contrary, conclusively presume in support of a motion to quash the writ, that the court had full jurisdiction of the subject matter, and that all the proceedings were according to law, and this presumption applies with equal force to the appointment of a special judge." (Crawford v. Lawrence, 154 Ind. 288, 56 N.E. 673.)

"The jurisdiction of the court may always be inquired into on habeas corpus, but not the right of the judge to hold his office." (Smith v. Sullivan, 33 Wash. 30, 73 P. 793.)

"The superior courts being courts of general jurisdiction, it will be presumed that the court in each instance acted within its jurisdiction, in the absence of an affirmative showing to the contrary." (State v. Holmes, 12 Wash. 169, 40 P. 735, 41 P. 887; In re Newman, 75 Cal. 213, 7 Am. St. 146, 16 P. 887, 889; Ex parte Tucker, 4 Okla. Cr. 221, 111 P. 665; In re Corralitos etc. Canning Co., 130 Cal. 570, 62 P. 1076; In re Hewes, 62 Kan. 288, 62 P. 673; Radford Trust Co. v. East Tenn. Lumber Co., 92 Tenn. 126, 21 S.W. 329; Jack v. State, 26 Tex. 1.)

BUDGE C. J.

OPINION

BUDGE, C. J.

On the 22d day of October, 1914, an information was filed in the district court of the third judicial district in and for Ada county, charging one O. V. Allen, former state treasurer, with the crime of embezzlement. Allen was present in court in person and represented by counsel when arraigned; he waived the reading of the information and the statutory time in which to plead thereto and asked permission to plead forthwith, and was thereupon permitted to enter his plea that he was "guilty of embezzlement as charged in the information." Upon his request that he be permitted to waive the statutory time for sentence and be immediately sentenced, the court sentenced him to a term of imprisonment in the state penitentiary for not less than five, nor more than ten, years.

On the 17th day of November, 1917, Allen filed a petition in this court for writ of habeas corpus; on the 14th day of January, 1918, the writ was issued and made returnable on the 17th day of January, 1918. Upon the return day the attorney general, on behalf of the state, filed a motion to quash the writ and a demurrer on behalf of the state and Frank E. De Kay, warden of the Idaho State Penitentiary, on the ground and for the reason that the petition upon which the writ was issued failed to state facts sufficient to entitle the petitioner to the relief demanded.

The records of the trial court held on that day show, among other things, that the court was in regular session and that the Hon. Ed. L. Bryan, District Judge of the seventh judicial district, at the request of the Governor and in the absence of both of the judges of the third judicial district, presided as judge thereof, but the record does not show that either of the judges of said district was absent from the state or was absent from the district on the 22d day of October, 1914, or that either of said judges was unable by reason of sickness or for any other cause to hold court in said county and district on said date, or that either of said judges requested the Hon. Ed. L. Bryan to hold said court on said date, or that either of said judges requested the Governor to request the said Hon. Ed. L. Bryan to hold such court on said date. Neither does the record show that a certificate, from the clerk of said court showing that both of said judges were absent from the state or the third judicial district, or by reason of sickness or for any other cause were unable to hold court therein on said 22d day of October, 1914, was transmitted to the Governor of the state of Idaho as prescribed by sec. 3886, Rev. Codes.

It is the contention of petitioner that Judge Bryan's acts at the session of the district court of the third judicial district held on October 22, 1914, touching the arraignment plea and sentence of petitioner, were invalid and all of said acts were in excess of and beyond his jurisdiction and void, for the reason that the conditions precedent prescribed in the constitution and statutes were not complied with. The section of the constitution referred to is the following: Sec. 12. art. 5. "Every judge of the district court shall reside in the district for which he is elected. A judge of any district court may hold a district court in any county at the request of the judge of the district court thereof, and, upon the request of the governor, it shall be his duty to do so. . . . " And sec. 3886, Rev. Codes is as follows: "Sec. 3886. A District Judge may hold a court in any county in this State upon the request of the Judge of...