In re Corcoran

• Decision Date: 27 November 1899
• Citation: 6 Idaho 657,59 P. 18
• Parties: IN RE PAUL CORCORAN
• Court: Idaho Supreme Court

59 P. 18

6 Idaho 657

IN RE PAUL CORCORAN

Supreme Court of Idaho

November 27, 1899

HABEAS CORPUS-GRAND JURY.-In an application for a writ of habeas corpus, the matter of the drawing, summoning and impaneling of the grand jury, which found indictment under which the petitioner was convicted, are not proper matters for consideration, such questions being subject to review only on appeal or writ of error.

SAME.-In this case the objections raised to the legality of the grand jury examined and held to be untenable.

CRIMINAL LAW-SECTION 8500 OF THE REVISED STATUTES NOT REPEALED.-The provisions of section 8500 of the Revised Statutes, providing for the sentence of persons convicted of crimes punishable by imprisonment in the state penitentiary has not been repealed or modified by subsequent legislation.

(Syllabus by the court.)

Original proceeding in supreme court. Application for writ of habeas corpus.

Petition denied.

P Reddy and Alfred A. Fraser, for Petitioner.

The judgment in this case is void, for the reason that in addition to the punishment provided by law for the offense, he was sentenced to seventeen years at hard labor. A judgment in excess of that provided by law is absolutely void. (Ex parte Cox, 3 Idaho 530, 32 P. 197; Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152; People v. Liscomb, 60 N.Y. 559, 19 Am. Rep. 211; Ex parte Bernert, 62 Cal. 524; Ex parte Lange, 18 Wall. 163; Ex parte Wilson, 114 U.S. 417, 5 S.Ct. 935; Ex parte Page, 49 Mo. 291; Ex parte Nielsen, 131 U.S. 176, 9 S.Ct. 672.)

S. H. Hays, Attorney General, W. E. Borah, Hawley & Puckett and J. H. Forney, for the State.

Under provisions of section 3961 the court may, for good cause, discharge regularly drawn and summoned jurors, and order open venire for jurors to try the cause at the term for which juros were regularly drawn. (Simmons v. Cunningham, 4 Idaho 426, 39 P. 1109.) To the same effect are the following authorities: People v. Durrant, 116 Cal. 179, 48 P. 75; Babcock v. People, 13 Colo. 515, 22 P. 817; Chartz v. Territory (Ariz.), 32 P. 166; Macky v. People, 2 Colo. 13; State v. King, 9 Mont. 445, 24 P. 265. We think the provision of the statute directing the ordering of the grand jury by the court, although it contains the word "must," is simply directory to the court, and if for any reason it is not done, the other provision of the statute may be followed. ( State v. Krug, 12 Wash. 288, 41 P. 127; Weeks v. State, 31 Miss. 490; Johnson v. State, 33 Miss. 363; State v. Smith, 67 Me. 328.) The errors claimed, even if they existed, were not jurisdictional, and mere errors and irregularities will not be inquired into on a hearing of this kind. Errors in summoning a grand jury will not be considered on habeas corpus. (In re Betts, 36 Neb. 282, 54 N.W. 524; Ex parte Warris, 28 Fla. 371, 9 So. 718; Ex parte Springer, 1 Utah 214.) The grand jury was at least a de facto body, and its acts cannot be questioned here. (State v. Noyes, 87 Wis. 340, 41 Am. St. Rep. 45, 58 N.W. 386, 27 L. R. A. 776; State v. Marsh, 13 Kan. 596; Sage v. State, 127 Ind. 15, 26 N.E. 667; In re Gannon, 69 Cal. 541, 11 P. 240; State v. Belvel, 89 Iowa 405, 56 N.W. 545; People v. Reigel, 120 Mich. 78, 78 N.W. 1017; Ex parte Twohig, 13 Nev. 302; State v. Petrea, 92 N.Y. 128.) Assuming that the judgment is erroneous as to the provision for hard labor, still it can only be corrected upon a writ of error, and in no event is the defendant entitled to a release under a writ of habeas corpus. (United States v. Pridgeon, 153 U.S. 631, 14 S.Ct. 746; Ex parte Bond, 9 S.C. 80, 30 Am. Rep. 20; Church on Habeas Corpus, sec. 372.) It is held that, although the court might have rendered an erroneous judgment, such as imposing hard labor, when not allowed, or rendered a severer sentence than allowed, still these things must be corrected by an appeal or writ of error, and cannot be considered on a writ of habeas corpus. (In re Graham, 74 Wis. 450, 17 Am. St. Rep. 174, 43 N.W. 148; Sennott's Case, 146 Mass. 489, 4 Am. St. Rep. 344, 16 N.E. 448; Ex parte Ryan, 17 Nev. 139, 28 P. 1040; In re Swan, 150 U.S. 637, 14 S.Ct. 225; Ex parte Gibson, 89 Ala. 174, 7 So. 833; Church on Habeas Corpus, sec. 372; In re Paschal, 56 Kan. 123, 42 P. 373; Ex parte Max, 44 Cal. 579; State v. Sloan, 65 Wis. 647, 27 N.W. 616; People v. Jacobs, 66 N.Y. 8; Ex parte Gibson, 31 Cal. 628, 91 Am. Dec. 546; People v. Liscomb, 60 N.Y. 559, 19 Am. Rep. 211; People v. Kelley, 97 N.Y. 213; Elsner v. Shrigley, 80 Iowa 30, 45 N.W. 393; Ex parte Lange, 18 Wall. 163; In re Graham, 138 U.S. 461, 11 S.Ct. 363; In re Taylor, 7 S. Dak. 382, 58 Am. St. Rep. 843, 64 N.W. 253; Ex parte Arras, 78 Cal. 304, 20 P. 683.)

HUSTON, C. J. Quarles and Sullivan, JJ., concur.

OPINION

HUSTON, C. J.

The petitioner was convicted of murder in the second degree, and sentenced to confinement in the state penitentiary at hard labor for the period of seventeen years. Application is made for a writ of habeas corpus, which application is based upon several grounds. The jumbled, incoherent, and repetitive manner in which the grounds upon which the writ is asked are stated in the briefs of counsel for the petitioner renders it somewhat difficult to treat or consider them seriatim. We will therefore consider them as they appear to us in the briefs of counsel.

The primary contention is, as set forth in the principal brief, "that the judgment and sentence is void, because the court never acquired jurisdiction of the person of defendant, or of the offense set forth in the judgment and commitment"; and this, because, as is contended, the grand jury which found the indictment upon which the petitioner was tried and convicted was not summoned and impaneled as required by law. In support of this position, petitioner's counsel set forth the proceedings of the court in the matter of summoning the grand jury, as the same appears in the record, which is as follows: "In the Matter of Drawing and Summoning a Grand Jury."

"It satisfactorily appearing to the court that a grand jury will be required at this term of court, and that the same has not been drawn or summoned to attend, it is therefore ordered that the coroner, and acting sheriff of said county summon, as provided by law, twenty good and lawful men of this county to be and appear at the courthouse of said county, at Wallace, at 2 o'clock P. M., on June 12, A. D. 1899.

"Done in open court, this eighth day of June, A. D. 1899.

(Signed)

"GEORGE H. STEWART,

"Judge."

It should be stated in limine that it is shown, both by the return to the writ of habeas corpus herein, as well as by public records, of which we take judicial notice, that at the general election held in November, 1898, the county seat of Shoshone county was, by vote of the qualified electors of said county, changed from the town of Murray, to the town of Wallace, and that the jury, which counsel for petitioner claims had already been drawn, was drawn at the town of Murray, after such removal of the county seat to the town of Wallace. The law provides that the jury shall be drawn at the office of the clerk, which is required to be kept at the county seat, and, the law not having been complied with in the drawing of such jury, the statement of the district judge in his order that no jury had been drawn was entirely correct. It is contended by counsel for the petitioner that "the court had no power or authority to make such order, and it was therefore null and void."

Section 3952 of the Revised Statutes, as the same stood prior to the amendatory act of February 7, 1899 (see Idaho Sess. Laws 1899, p. 335), was as follows: "Not less than fifteen nor more than thirty days before the commencement of any term of the district court, the judge thereof, if a jury will be required therefor, must make and file with the clerk an order that one be drawn. The number to be drawn must be fixed in the order; if to form a grand jury, it must be twenty, and if a trial jury, such number as the judge may direct." By the amendatory act referred to, said section was made to read as follows: "The district court or the judge thereof, if a jury will be required at any term of the district court, must make and file with the clerk an order that one be drawn. The number to be drawn must be fixed in the order; if to form a grand jury, it must be twenty, and if a trial jury, such number as the judge may direct." It will be seen that the only change made in the section by this amendment is the elimination therefrom of the time within which such order must be made, to wit: "Not less than fifteen nor more than thirty days before the commencement of any term of the district court." The purpose and intent of the legislature in the enactment of this amendment is palpable, and yet counsel for petitioner most vehemently contends that this amendatory act repealed section 3961 of the Revised Statutes. This latter section is as follows: "Sec. 3961. Whenever jurors are not drawn and summoned to attend any court of record, or a sufficient number of jurors fail to appear, such court may, in its discretion, order a sufficient number to be drawn and summoned to attend such court; or it may, by order entered on its minutes, direct the sheriff of the county to summon so many good and lawful men of his county to serve as jurors as the case may require. And in either case such jurors must be summoned in the manner provided by the preceding section." This contention of counsel rests entirely upon the assumption that section 2 of the amendatory act provides that "all acts and parts of acts in conflict with this act are hereby repealed," and that the provisions of section 3961 are in conflict with section 3952 as amended. It will hardly be contended, we apprehend, that there was any...