In re Jones

• Decision Date: 26 October 1892
• Citation: 35 Neb. 499,53 N.W. 468
• Parties: IN RE JONES.
• Court: Nebraska Supreme Court

35 Neb. 499

53 N.W. 468

IN RE JONES.

Supreme Court of Nebraska.

Oct. 26, 1892.

Syllabus by the Court.

The petitioner, on pleading guilty to an information charging him with the crime of burglary, was sentenced to the state industrial school, as under the age of 18 years, and was committed under said judgment to said institution. Shortly thereafter, and during the same term, the court sentencing him vacated and set aside said judgment, on the ground of mistake as to the petitioner's age, and sentenced him again, on the same information and plea of guilty, to be imprisoned in the penitentiary for the term of four years. Held, that the court had no jurisdiction to vacate the original judgment, or to pronounce the second sentence, and that the last sentence was a nullity.

Application by Thomas Jones for a writ of habeas corpus discharging him from the custody of James Mallon, warden of the state penitentiary. Writ granted.Walter A. Leese, for petitioner.

NORVAL, J.

This is an application by the above-named petitioner for a writ of habeas corpus against James Mallon, warden of the state penitentiary. It appears that on the 18th day of April, 1890, the petitioner pleaded guilty, in the Otoe county district court, to an information charging him with the crime of burglary, and on the same day was sentenced to the state industrial school at Kearney, as under the age of 18 years. He was duly committed to said industrial school, in pursuance of said sentence, on the 28th day of April, 1890, where he was kept and confined until the 15th day of the following month. On the 10th day of May, 1890, the district court of Otoe county, on motion of the county attorney, supported by affidavit, and in the absence and without the consent of the petitioner, vacated and set aside the said sentence, on the ground that the petitioner at the time of the commission of the offense was over the age of 18 years, and the sheriff of said county was ordered and directed to proceed to said industrial school, receipt for and receive said petitioner, and have his body before said court on the 17th day of said month. In pursuance to said order and judgment the petitioner was brought from said industrial school into said court on the 17th day of May, 1890, when the court again sentenced him, on the same information and plea of guilty, to be imprisoned in the state penitentiary, at hard labor, Sundays and legal holidays excepted, for the term of four years. Under his last sentence the petitioner has been confined in the penitentiary since May 31, 1890. Both sentences were pronounced at the same term of court.

The question presented by the record before us is, did the district court have the power or jurisdiction to vacate and set aside the first sentence at the same term of court at which it was rendered, but after relator had suffered part of the punishment thereby imposed, and pronounce a second sentence in the same case? If the entry of the last judgment was a mere error, which would subject it to reversal by this court upon a petition in error, then the petitioner is not entitled to his discharge upon this proceeding, for it is firmly settled in this state that habeascorpus is not a proper proceeding to review a judgment in a criminal case. By section 5, c. 75, Comp. St., authority is conferred upon a court of record of this state to commit any minor under the age of 18 years to the state industrial school who has been found guilty in such court of any crime except murder or manslaughter committed under the age of 16 years. This court has decided that the question of the age of the accused is one of fact to be decided by the trial court, and its finding can be reviewed only in appellate proceedings. The record discloses that the district court, by the judgment first entered, found that Thomas Jones was a minor of the age required by law for confinement in the industrial school. Although the petitioner was over the age of 18 years, the first sentence was not for that reason void; it was...