In re Application of Setters

• Decision Date: 14 January 1913
• Citation: 128 P. 1111,23 Idaho 270
• Parties: In the Matter of the Application of J. S. SETTERS for a Writ of Habeas Corpus
• Court: Idaho Supreme Court

128 P. 1111

23 Idaho 270

In the Matter of the Application of J. S. SETTERS for a Writ of Habeas Corpus

Supreme Court of Idaho

January 14, 1913

HABEAS CORPUS-INDETERMINATE SENTENCE-JUDGE CANNOT FIX TERM.

(Syllabus by the court.)

1. Sec 7034, Rev. Codes, provides a penalty of not less than one year and not more than fourteen years for the offense described in such section.

2. Under the provisions of the indeterminate sentence act of March 11, 1909, every person convicted of a felony or other crime punishable by imprisonment in the penitentiary, except treason and murder in the first degree, if judgment be not suspended or new trial granted, shall be sentenced to the penitentiary as provided by law. The court imposing such sentence shall not fix the limit or duration of the sentence but the term of imprisonment of any person so convicted shall not exceed the maximum nor be less than the minimum provided by law for the crime for which the person was convicted and sentenced. This act also provides that in all cases where the maximum sentence in the discretion of the court may be for life or any number of years, the court imposing the sentence shall fix the maximum sentence, and that in all cases where no minimum sentence is fixed by law, the court imposing sentence shall fix such minimum, which minimum shall not be less than six months nor more than five years, the release of such persons to be determined as provided in said section.

3. The indeterminate sentence act of March 11, 1909, amends sec 7034, Rev. Codes, and the term of imprisonment is for not less than one year nor more than fourteen years, the minimum and maximum fixed by said section.

4. Where a person is tried and convicted under sec. 7034, Rev Codes, and such crime is committed and such judgment entered subsequent to the taking effect of the indeterminate sentence act approved March 11, 1909, and the sentence of the court is, that the defendant be confined in the state penitentiary for a period of not less than three years nor more than five years, upon an application for a writ of habeas corpus, where the application is made for release upon the ground that such judgment is void, the sentence should be interpreted in the light of the law upon which it is based, and the minimum fixed by the statute should be read into and considered a part of the sentence and mittimus. The minimum term fixed by the statute under which the applicant was prosecuted and sentenced cannot be, and is not, less than one year, as provided by sec. 7034, Rev. Codes.

Original application for writ of habeas corpus to discharge the petitioner upon the ground that the judgment and sentence rendered upon conviction is void. Application denied.

Application denied and writ quashed, and the petitioner remanded.

W. A. Ricks and Garland Draper, for Petitioner.

"Jurisdiction to render the particular sentence imposed is as essential to its validity as jurisdiction of the person or subject matter." (Church on Habeas Corpus, sec. 362; Ex parte Cox, 3 Idaho 530, 32 P. 197, 95 Am. St. 29; Ex parte Justus, 3 Okla. Cr. 111, 104 P. 933, 25 L. R. A., N. S., 483; Ex parte Gudenoge, 2 Okla. Cr. 110, 100 P. 39; Ex parte Davis, 33 Nev. 309, 110 P. 1131; In re Spaulding, 75 Kan. 163, 88 P. 547.)

Under the decision of this court in Re Chase, 18 Idaho 561, 110 P. 1036, the petitioner's entire term of imprisonment has been without authority of law, and he was entitled to his discharge on habeas corpus on the first day of his confinement. (12 Cyc. 782.)

"The sentence must be so complete as to need no construction of a court to ascertain its import, and it cannot be supplemented by a nonjudicial or ministerial officer." (In re Moore, 14 Ohio C. C. 237; Ex parte Howard, 72 Kan. 273, 83 P. 1032; Ex parte McClure, 6 Okla. Cr. 241, 118 P. 591; 15 Am. & Eng. Ency. of Law, 170; Ex parte Wilkins, 7 Okla. Cr. 422, 115 P. 1118; People v. Webster, 92 Hun. 378, 36 N.Y.S. 995.)

D. C. McDougall, Attorney General, O. M. Van Duyn and J. H. Peterson, Assistants, for the State.

It is not necessary for the district court to refer at all in his sentence to the minimum or maximum term, and in case a reference is so made the same is surplusage.

A sentence by the court in excess of the minimum or below the maximum is simply voidable, is no part of the judgment, and is separable from the remainder of the judgment. (Adams v. Barr (Iowa), 134 N.W. 565.)

When the sentence is legal in one part and illegal in another part, the illegal part, if separable, may be disregarded and the legal part enforced. (United States v. Pridgeon, 153 U.S. 48, 14 S.Ct. 746, 38 L.Ed. 631; State v. Williams, 77 Mo. 310; State v. Feilen (Wash.), 126 P. 75.)

The sentence need not express duration of imprisonment. ( People v. Warden of Sing Sing Prison, 39 Misc. 113, 78 N.Y.S. 907; Hagenow v. People, 188 Ill. 545, 59 N.E. 242.)

A sentence under the indeterminate sentence law is to be interpreted in the light of the statutes upon which it is based, and the maximum punishment fixed by law should be read into and considered a part of the sentence and mittimus. (Ex parte Duff, 141 Mich. 623, 105 N.W. 138; People v. State Reformatory, 148 Ill. 413, 36 N.E. 76, 23 L. R. A. 139; Miller v. State, 149 Ind. 607-618, 49 N.E. 894, 40 L. R. A. 109; People v. Fisher, 144 Mich. 570, 108 N.W. 280; State v. Perkins, 143 Iowa 55, 120 N.W. 62, 20 Ann. Cas. 1217, 21 L. R. A., N. S., 931.)

Such sentence is valid to the extent that the court had power to impose it although void as to the excess. (Martin v. District Court, 37 Colo. 110, 119 Am. St. 262, 86 P. 82.)

STEWART, J. Ailshie, C. J., and Sullivan, J., concur.

OPINION

STEWART, J.

This is an original application for a writ of habeas corpus for the release of J. S. Setters, who is confined in the state penitentiary of this state. The facts alleged in the petition are as follows:

That an information was filed in the district court of Shoshone county by the prosecuting attorney of said county on the 20th day of December, 1909, charging Setters with passing a fictitious draft in violation of sec. 7034, Rev. Codes. On the same day the defendant plead guilty to said information and judgment was rendered against said Setters, finding him guilty and sentencing him to confinement in the penitentiary for not less than three nor more than five years; and in said judgment it was recited that said defendant had violated sec. 7034 of the Rev. Codes, and that such sentence was imposed upon Setters because of his violation of said section.

It is also alleged in the petition that the restraint, confinement and imprisonment are illegal and in violation of law, and that the judgment is null and void and of no effect, in that the imprisonment imposed "at not less than three nor more than five years at hard labor in the state penitentiary" is in violation of an act approved March 11, 1909; that such judgment is illegal and void, for the reason that the sentence imposed is indefinite and uncertain, in that it specifies both the maximum and minimum term of imprisonment, which is not within the jurisdiction and authority of law.

To this petition the attorney general filed a demurrer on the general ground that the petition does not state facts sufficient to constitute a cause of relief.

It is the contention of the petitioner that the judgment and sentence imposed by the district court of Shoshone county is null and void, for the reason that the sentence imposed upon petitioner is without authority of law and contrary to law.

The attorney general, on behalf of the state, contends that the sentence imposed by the district court, in excess of the minimum or below the maximum is simply voidable, and that such excess is no part of the judgment, and is separable from the remainder of the judgment.

These respective contentions are to be determined by the consideration of the provisions of the statute upon which the prosecution was based, and the act of March 11, 1909, providing for the indeterminate sentence of persons convicted of certain felonies.

Sec. 7034 provides: "Every person who makes, passes, utters or publishes, with intention to defraud any other person . . . . any fictitious bill, note or check . . . . is punishable by imprisonment in the state prison for not less than one nor more than fourteen years."

Sec. 1 of the act of March 11, 1909, Sess. Laws, 1909, p. 82, provides: "Every person convicted of a felony or other crime punishable by imprisonment in the penitentiary, except treason and murder in the first degree, if judgment be not suspended or new trial granted, shall be sentenced to the penitentiary, as provided by law. The court imposing such sentence shall not fix the limit or duration of the sentence, but the term of imprisonment of any person so convicted shall not exceed the maximum nor be less than the minimum provided by law, for the crime for which the person was convicted and sentenced."

This section also contains two provisos: First, "That in all cases where the maximum sentence, in the discretion of the court, may be for life or any number of years, the court imposing the sentence shall fix a maximum sentence; second, "Provided, further, that in all cases when no minimum sentence is fixed by law, the court imposing sentence shall fix such minimum, which minimum shall not be less than six months nor more than five years, the release of such persons to be determined as hereinafter provided."

These two provisos have no application to the facts of this case for the reason that the crime charged is based upon sec. 7034, Rev. Codes, which provides a penalty "for not less than one nor more than fourteen years." Thus the minimum and maximum sentence are fixed by the provisions of this...