In re Patzwald

• Citation: 50 P. 139,5 Okla. 789,1897 OK 74
• Parties: In re PATZWALD.
• Decision Date: 30 July 1897
• Court: Supreme Court of Oklahoma

50 P. 139

5 Okla. 789, 1897 OK 74

In re PATZWALD.

Supreme Court of Oklahoma

July 30, 1897

Syllabus by the Court.

1. The writ of habeas corpus is an ancient prerogative writ. It is a writ of right granted to inquire into all cases of illegal imprisonment. The right to relief from unlawful imprisonment through the instrumentality of the writ of habeas corpus is not the creation of any statute, but exists as part of the common law of this territory. The writ cannot be abrogated or its efficiency impaired, by legislative action; and cases within the relief afforded by the writ at common law cannot under the constitution, be placed beyond its reach.

2. At common law the writ went to an inquiry into all cases of illegal imprisonment, but not to cases of irregularities or errors merely. If the process or judgment under which the party was in custody was irregular or erroneous merely, if the court or officer rendering the judgment or issuing the process had jurisdiction to render the judgment or issue the process, the courts would not interfere by habeas corpus, but would leave the party to his writ of error; but, if the court or officer was without jurisdiction or power to render the judgment or issue the process, the imprisonment was illegal and the courts would relieve by habeas corpus.

3. The provisions of the habeas corpus act of this territory (section 4578, St. 1893), excluding from its benefits persons committed or detained by virtue of any process issued on any final judgment of a "court of competent jurisdiction," only applies when the tribunal had jurisdiction to render the particular judgment. A court of "competent" jurisdiction is one having power and authority of law at the time of acting to do the particular act. The prohibition contained in said section, forbidding inquiry into the legality of any process or judgment specified in the provision above referred to, does not take from the court or officer having jurisdiction of the writ the power, or relieve from the duty, of determining whether the judgment or process emanated from a court of competent jurisdiction to issue the process or render the judgment.

4. Jurisdiction of the person of the prisoner and of the subject-matter are not alone conclusive, but the jurisdiction of the court to render the particular judgment is a proper subject of inquiry; and, while the court cannot go behind the judgment and inquire into alleged errors and irregularities not affecting the power or authority of the court preceding the judgment, the question is presented, and must be determined, whether, upon the whole record, the judgment was warranted by law, and was within the jurisdiction of the court.

5. Where, during the trial of a criminal cause, and while the jury was in charge of the bailiffs deliberating of a verdict, the court was adjourned for two days, and the judge went to another county, and opened and held a term of court there, held, that the term terminated by operation of law, as to that case, when the judge left the place where the court is by law required to be held, and went to the other county, and there opened court; that in his absence the jury had no authority to consider the case; that the jurisdiction, having been suspended by the dissolution of the court, could not be resumed by the return of the judge; that the jury could not lawfully return a verdict in the case; that a verdict returned and a judgment therein were coram non judice, and void.

Petition by Albert W. Patzwald for a writ of habeas corpus. Petitioner was convicted in the district court of Oklahoma county, sitting with the powers and jurisdiction of a United States district court, of the crime of perjury, and sentenced to imprisonment in the United States penitentiary at Leavenworth, Kan., for a term of three years, and to pay a fine of $1 and the costs of prosecution, taxed at $2,416.15. Writ granted, and prisoner discharged.

Dille & Burford, for petitioner.

C. R. Brooks, U.S. Atty., and T. F. McMechan and Roy Hoffman, Asst. U.S. Attys.

TARSNEY J.

The case out of which this proceeding grows was before us at the January term last, upon petition in error, and the judgment of the district court was then affirmed. Patswald v. U S., 5 Okl. 351, 49 P. 57. The petitioner brings this proceeding to test the validity of the judgment upon a question of jurisdiction not appearing in the record upon the appeal. Petitioner is in the custody of the respondent, Patrick S. Nagle, United States marshal, under said judgment. The issuing of the writ, a return thereto, and the bringing of the petitioner before the court is by the parties expressly waived, and the cause is submitted upon an agreed statement of facts. A question confronts us, and must be considered in limine, as to the jurisdiction of this court to consider the question presented in the petition and agreed statement of facts. It is strongly contended by counsel for respondent that habeas corpus is not the proper proceeding in which to present the question of the validity of a judgment; that, where the imprisonment is under the judgment of a court of competent jurisdiction, such judgment cannot be attacked collaterally; that the proceeding for relief therefrom, if the judgment is erroneous, must be by proceedings in error; that, no matter how irregular or invalid, if the judgment is regular upon its face, where the process upon such judgment is a justification of the officer, the judgment cannot be reviewed, or the proceedings inquired into, in habeas corpus proceedings. It is contended that we are precluded from inquiring into the errors alleged in this petition by the provisions of section 4578 of the Statutes of this territory (St. 1893, p. 881), which reads: "No court or judge shall inquire into the legality of any judgment or process whereby the party is in custody, or discharge him when the term of commitment has not expired, in either of the following cases: *** Second: Upon any process issued on any final judgment of a court of competent jurisdiction." In Ex parte Harlan, 1 Okl. 48, 27 P. 920, this court has said: "The law is well settled that in a case like the present, in which the petitioner is in execution upon a conviction, the writ of habeas corpus ought not to be awarded if the trial court had jurisdiction of the person and of the crime charged, and did no act beyond the powers conferred upon it. And the proceedings of the trial court will be examined so far as necessary to determine the question of jurisdiction; and, if it appears that the court transcended its powers, the writ will be granted, and the prisoner discharged, even after judgment; but, if the trial court had jurisdiction and power to convict and sentence, the writ cannot issue to correct mere errors." This case was decided before the statute of 1893 was enacted, and consequently does not determine the effect of that statute. In re Le Roy, 3 Okl. 322, 41 P. 615, it is contended, is conclusive against the petitioner in this case, and, unless expressly overruled, is conclusive against the jurisdiction of this court to inquire into the question presented upon this petition. A decision is never conclusive except as to the questions therein involved and necessarily determined. In that case it appeared that an indictment in the district court charged the crime of grand larceny in two counts against the petitioner; that upon the trial of the case, when submitting the same, the court instructed the jury to return a verdict of not guilty upon the first count of the indictment; and, after deliberating, the jury returned a verdict of guilty as to the second count of the indictment. In proceedings upon habeas corpus it was held, and correctly, that questions of the sufficiency of pleadings can never be made the subject of inquiry by habeas corpus. Mr. Justice Scott bases the decision in that case upon one paragraph of the syllabus in Ex parte Harlan, reading: "After conviction of perjury, the accused cannot be discharged on habeas corpus if the trial court had jurisdiction of the person and of the crime, however erroneous its proceedings may be." He also cites, without comment, section 4578 of the Statutes. It is hardly apparent where there was any error in the record complained of in that case, and it was not necessary for the court to construe section 4578, or to determine the effect or scope of its limitations upon the powers of courts in habeas corpus, nor was it therein construed. Independent of the statute, in Ex parte Harlan it was held that: "If the trial court has no jurisdiction in a criminal case, its judgment is void, and the party convicted and sentenced will be discharged on habeas corpus." And in Re Seagraves, 4 Okl. 422, 48 P. 272, and Baxter v. Thomas, 4 Okl. 605, 46 P. 479, the court discharged the petitioners after conviction upon the ground that the trial court had no jurisdiction. The convictions in those cases were after the enactment of the statute of 1893, but the question of the effect of the statute was not presented in either of those cases. It may, therefore, be said that there has been no direct adjudication or interpretation of this statute in this territory, and that the question of its validity, scope, and effect is undetermined. It will not be contended, upon the one hand, that if proceedings criminal, which result in a conviction, are irregular or erroneous,--merely voidable, but not void,--they can be reviewed in habeas corpus proceedings, or in any other manner than by a direct proceeding in the cause. On the other hand, it must be conceded that if such proceedings were wholly void, if the court or officer had no jurisdiction at common law, the court had jurisdiction by habeas corpus to inquire into such proceedings, and, if found to be void,...