In re Graham

Decision Date24 September 1889
Citation43 N.W. 148,74 Wis. 450
CourtWisconsin Supreme Court


Applications for writs of habeas corpus by John Graham and Samuel McDonald.Rublee A. Cole, for petitioners.


The petitioners were charged on an information, in substance, of willfully and feloniously making an assault upon one Robert McDonald, and putting him in bodily fear and danger of life, and feloniously robbing him of $200 in money,--such petitioners being each armed with a dangerous weapon, namely, a loaded revolver, him, the said Robert McDonald, did wound and strike and rob, etc. The petitioners were convicted of the offense as charged, and Graham was sentenced to imprisonment in the state-prison for the period of 13 years, and McDonald for the period of 14 years. The information was doubtless based upon section 4375, Rev. St., which seems to apply to the offense of which they were charged. The judgments were doubtless intended to be under that section. The section provides that the guilty party “shall be punished by imprisonment in the state-prison, not more than ten years, nor less than three years.” The sentence is in excess of the period fixed by statute, and writs of habeas corpus are applied for upon that ground.

We deny the writs for the reason that the error in the judgments does not render them void, nor the imprisonment under them illegal, in that sense which entitles them to be discharged on a writ of habeas corpus. The judgments are doubtless erroneous, and would be reversed on writ of error. Fitzgerald v. State, 4 Wis. 395;Haney v. State, 5 Wis. 529;Benedict v. State, 12 Wis. 314;Peglow v. State, 12 Wis. 534. But the judgments are not void. State v. Sloan, 65 Wis. 647, 27 N. W. Rep. 616. The court had jurisdiction of the persons and subject-matter, or offense, but made a mistake in the judgment. For mere error, no matter how flagrant, the remedy is not by habeas corpus. The law is well settled in this court that on habeas corpus only jurisdictional defects are inquired into. The writ does not raise questions of errors in law, or irregularities in the proceedings. In re Crandall, 34 Wis. 177;In re Pierce, 44 Wis. 444. On the petitions presented, the writs would be unavailing if granted. They are therefore denied. In re Semler, 41 Wis. 517.

Writs denied.

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