In re Petition of C. C. Watson for A Writ of Habeas Corpus

• Decision Date: 07 August 1883
• Citation: 1 P. 775,30 Kan. 753
• Parties: In the Matter of the Petition of C. C. WATSON for a Writ of Habeas Corpus
• Court: Kansas Supreme Court

1 P. 775

30 Kan. 753

In the Matter of the Petition of C. C. WATSON for a Writ of Habeas Corpus

Supreme Court of Kansas

August 7, 1883

Decided July, 1883.

PETITION by C. C. Watson, who prayed to be released from the custody of George Balch, as sheriff of Chase county. Hearing at chambers, July 31, 1883, before BREWER, J., who filed the following opinion, August 7, 1883:

Petition denied.

S. N Wood, and Waters & Ensminger, for petitioner; and W. A Johnston, attorney general, and Edwin A. Austin, for respondent.

OPINION

BREWER, J.

This is an application in habeas corpus. The facts are these: The petitioner is in the custody of the respondent, the sheriff of Chase county, under a warrant of commitment issued by the district court of that county. It appears that in the early part of 1882, an information was filed against the petitioner, charging him, under § 15 of the crimes act, with administering medicines, drugs, etc., to a woman with a quick child, with the intent to destroy such child. The case was tried at the May term, 1882, and the defendant found guilty under § 44 of such act, of administering medicines, etc., with intent to procure abortion. The motion for a new trial was made and overruled. All this took place at the May term. Thereafter a motion in arrest of judgment was filed, and continued to the December term. On the journals of that court of the December term, at its last day, appears an entry overruling the motion in arrest of judgment, and sentencing the defendant to pay a fine of $ 50 and costs. A bill of exceptions was duly signed, and such judgment appealed to this court, and the judgment affirmed at the July session of this court. (Ante, p. 281.) Now it is claimed by petitioner that this entry of a judgment at the December term of the district court is wrong; that in fact no judgment was then entered; that the entry on the journal is an interpolation and unauthorized; and that he has never been sentenced by any court. As a matter of fact, if parol testimony is competent to contradict the record, it can be shown that at the last day of the December term the motion in arrest of judgment was called for hearing. The parties were not ready, and desired further time. The presiding judge of that court had some time before tendered his resignation, to take effect January 1, 1883, and he at that time stated to the parties that it must be then heard, or go over for consideration by his successor. It was thereupon agreed by the county attorney and the attorney for defendant that the motion in arrest and the further disposition of the case should be heard before Judge Peters, the then judge, at Topeka, on the 3d or 4th of January following, and that the disposition which he should then make of the motion and of the case, should be entered of record as a part of the proceedings of the last day of the December term. On January 3d or 4th, the motion in arrest was in fact argued before Judge Peters, at Topeka, and his decision there announced, overruling the motion and sentencing the defendant. The journal entry containing this ruling was not there and then signed by him, but was forwarded to him at his residence in Harvey county, and within a day or two thereafter signed by him and forwarded to the clerk of Chase county district court, and by him entered on the journal. Now if parol testimony is competent to contradict the record, it will appear that the motion in arrest of judgment and the oral announcement of the motion and sentence, were made by Judge Peters after his term of office had expired by resignation, and when he was in fact a private citizen and outside of the district. This therefore is the question presented, whether in a habeas corpus case the entry of a judgment in the district court, entered in the ordinary way on the journals of that court and in all things apparently regular, can be overthrown by parol testimony that such entry was ordered and directed by one who had ceased to be a judge of that court, and while assuming to act outside of the district?

The case has been argued very fully, authorities cited on both sides, and an appeal made to some elementary and familiar rules of law. On the one hand, it is said that no magistrate or judicial officer has jurisdiction outside of the territory of which he is an officer, (Morrell v. Ingle, 22 Kan. 32; Comm'rs of Marion Co. v. Barker, 25 id. 258; Phillips v. Thralls, 26 id. 780;) and again, that no private citizen may usurp the functions of a court, and pronounce judgment and sentence against a party. On the other hand, it is insisted that the records of a court import absolute verity, and cannot be overthrown by parol testimony.

With some hesitation, in view of the decisions already made by this court, I think the latter proposition is controlling. It may be remarked in the first instance, that no fraud or deception has been practiced upon the petitioner. No entry has been surreptitiously made on the records of the district court. Everything that was done, was done with the knowledge and assent of defendant's counsel. He accepted the judgment, which was apparently entered in due form, as valid, and sought by appeal to this court to have the same set aside. He treated it as regular for the purpose of an appeal, knowing at the time just what had been done.

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