In re Cook

• Decision Date: 26 May 1926
• Docket Number: No. 5149.,5149.
• Parties: In re COOK.
• Court: North Dakota Supreme Court

54 N.D. 193

209 N.W. 231

In re COOK.

No. 5149.

Supreme Court of North Dakota.

May 26, 1926.

Syllabus by the Court.

On habeas corpus, the inquiry is limited to questions of jurisdiction; and the writ cannot be invoked for the purpose of reviewing the acts of courts or officers who were acting within their jurisdiction. Anna Cook v. State et al. (N. D.) 208 N. W. 977.

It is a rule of criminal procedure of this state (section 11088, C. L. 1913), that “neither a departure from the form or mode prescribed* * * in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid unless it has actually prejudiced the defendant or tended to his prejudice in respect to a substantial right.” Anna Cook v. State (N. D.) 208 N. W. 977.

A defendant sentenced to imprisonment, who after service of notice of appeal from a judgment of conviction is granted a stay of execution, and is permitted to remain at liberty pending the appeal, and who generally acquiesces in the action of the court and avails himself of the advantages flowing therefrom, is not entitled to be discharged on writ of habeas corpus on the ground that the sentence began to run on the date of its imposition, because the trial court in granting the stay of execution erroneously accepted an improper or insufficient bail bond and did not issue and enter a certificate of probable cause.

Original application by Lewis Cook for discharge from custody on a writ of habeas corpus. Application denied.

Wood & Breaw, of Fargo, for petitioner.

H. F. Horner, State's Atty., and V. R. Lovell, Asst. State's Atty., both of Fargo, and George F. Shafer, Atty. Gen., for respondents.

NUESSLE, J.

The petitioner, Lewis Cook, is now confined in the state penitentiary. He complains that his confinement is illegal, and seeks to be released. To this end, on May 10th he applied to the Honorable Fred Jansonius, one of the judges of the Fourth judicial district, for discharge from custody on writ of habeas corpus. This application was denied; whereupon petitioner made original application to this court for such relief.

The facts are as follows: The petitioner, Lewis Cook, was arrested on a warrant issued out of a justice court of Cass county on a charge of bootlegging. On January 21, 1924, the justice admitted him to bail in the sum of $1,000. Pursuant to this order Cook furnished a bail bond, executed by himself and two sureties, conditioned:

“That the above-named Lewis Cook will appear and answer the charge above mentioned in whatever court it may be presented, and will at all times hold himself amenable to the orders and process of the court, and, if convicted, will appear for judgment and render himself in execution thereof, or, if he fails to perform either of these conditions, he will pay to the state of North Dakota the sum of $1,000.”

Thereafter a preliminary hearing was had, and Cook was held to answer to the charge at the next term of the district court. He was permitted to go at large under the bond theretofore furnished. In due time he was informed against in the district court, arraigned, tried, and convicted of the crime charged. The court fixed the time for passing of sentence as April 10, 1924. On that date, as shown by the clerk's minutes, the following proceedings were had:

“The court now asks the defendant if he has any reason to assign, legal or otherwise, why the judgment of the court should not be pronounced at this time, and the defendant, through his counsel, asks the court to defer the passing of sentence until certain motions are made in the case, which request is denied by the court. The court now listens to the statement of defendant's counsel and of Mr. Hendrickson (for the state), and after due consideration passes the following sentence, to wit: ‘The sentence of the court is that you, Lewis Cook, be confined in the state penitentiary at Bismarck for a period of eighteen months from to-day at noon, at hard labor, and that you now stand committed.’ The court now orders that execution of the above sentence be stayed until the motions referred to are made and pending the appeal in the case.”

A formal judgment and sentence was entered accordingly. On that same date, April 10th, Cook filed five written motions, including motions in arrest of judgment and for a new trial (presumably the motions referred to in the defendant's request to the court above noted). These motions, however, did not come on to be heard until November 18, 1924, at which time the court took them under advisement and requested counsel on both sides to submit briefs. The motions were not finally determined until March 19, 1925, when they were denied. Likewise, on April 10, 1924, counsel for Cook served a notice of appeal to this court from the order denying his motions in arrest of judgment and for a new trial, and from the judgment of conviction. It is stipulated that Cook was not at any time taken into custody subsequent to the 21st day of January, 1924, when he furnished the bond in the justice court, but it appears from the record that on September 19, 1924, one of the sureties on the bond of January 21st withdrew therefrom, and a bench warrant was issued for the petitioner by the clerk of the district court under the seal of the court. Petitioner was arrested and brought into court on this warrant, and on that date a new bond was submitted, signed by one surety, conditioned:

“That the above named ----- will appear and answer the information above mentioned and will at all times hold himself amenable to the orders and process of the court, and, if convicted, will appear for judgment and render himself in execution thereof, or, if he fails to perform either of these conditions, he will pay to the state of North Dakota the sum of $1,000.”

Whereupon petitioner was again released from custody and remained at large and within the jurisdiction of the district court of Cass county until committed to the state penitentiary on January 8, 1926. On September 1, 1925, pursuant to the notice of April 10, 1924, the record on appeal, together with appellant's brief, was transmitted to this court, and the cause was argued here on October 8, 1925. On November 2, 1925, an opinion was handed down affirming the judgment of conviction. See State v. Cook (N. D.) 206 N. W. 786. On December 2, 1925, Cook petitioned for a rehearing, which petition was denied on December 21, 1925. Thereafter the remittitur was sent down to the district court, and Cook was committed to the state penitentiary on January 8, 1926. It is to be noted that no certificate of probable cause was made or entered as provided in section 10999 et seq., C. L. 1913, nor was any bail put in other than as hereinbefore set out.

Petitioner strenuously insists that all that was done by the district judge in the way of ordering a stay and releasing the petitioner from custody was contrary to the statute and null and void, and that therefore, under the authority of In re Markuson, 5 N. D. 180, 64 N. W. 939, the time of imprisonment under the sentence imposed began to run at noon on April 10, 1924, and...