In re James Nolan

• Decision Date: 12 March 1904
• Docket Number: 13,865
• Citation: 68 Kan. 796,75 P. 1025
• Parties: In re JAMES NOLAN
• Court: Kansas Supreme Court

75 P. 1025

68 Kan. 796

In re JAMES NOLAN

No. 13,865

Supreme Court of Kansas

March 12, 1904

Decided January, 1904.

Original proceeding in habeas corpus.

SYLLABUS

SYLLABUS BY THE COURT.

CRIMINAL LAW -- Habeas Corpus -- Sentence Not Void. The petitioner was tried upon an information which charged him with burglary in the second degree. He was found "guilty as charged in the information." Under such information he might properly have been found guilty of a degree less than the second. He was sentenced and committed by the court to the Industrial Reformatory for an indeterminate period, as provided by law, where he is now being held as though he had been specifically found guilty of burglary in the second degree and sentenced for a term as long as is permissible for that offense. Held, that while such sentence may be irregular it is not void, and its irregularity will not avail to procure petitioner's discharge on a writ of habeas corpus from the commitment thereunder.

Hale & Maher, for petitioner.

C. C Coleman, for respondent.

CUNNINGHAM J. All the Justice concurring.

OPINION

CUNNINGHAM, J.:

The petitioner seeks by this original proceeding to be discharged from his confinement in the Kansas State Industrial Reformatory. He was proceeded against in the district court of Wyandotte county, by information charging him with burglary in the second degree and larceny. Upon his trial, the jury returned a verdict in the following language:

"We, the jury, find the defendant guilty of burglary and larceny as charged in the information, and we find the value of the property taken to be worth $ 12."

Thereafter, the court sentenced him to confinement in the Kansas State Industrial Reformatory, there to remain until discharged by law. The statute provides for such a sentence, and that the court ordering it shall not fix the limit or duration of the imprisonment, the time of which is to be determined by the managers of the reformatory, as authorized by law, which time shall not exceed the maximum term of imprisonment provided for the crime of which the prisoner was convicted, which, in this case, is ten years. The petitioner is now being held as though he had been found guilty of burglary in the second degree and could lawfully be imprisoned for the maximum term.

The contention of the petitioner is this: That inasmuch as there was necessarily included in the crime charged the lesser degrees of burglary and larceny, when the jury returned a verdict that he was guilty as charged the verdict was so indefinite and uncertain in not stating the degree of which he was found guilty that it was insufficient to warrant any judgment or sentence, and, therefore, that his imprisonment under the sentence pronounced is void, a commitment thereunder being no sufficient warrant upon which to hold him. This contention is stated in the following language in petitioner's brief:

"That the judgment and sentence of the district court...