In re Taylor

Decision Date30 August 1895
Citation7 S.D. 382,64 N.W. 253
PartiesIn re TAYLOR.
CourtSouth Dakota Supreme Court


Syllabus by the Court.

Where a court has jurisdiction of the person and the offense, the imposition of a sentence in excess of what the law permits does not render the legal or authorized portion of the sentence void, but only leaves such portion of the sentence in excess open to question and attack.

William W. Taylor makes application for a writ of habeas corpus. Denied.Horner & Stewart, for petitioner. Coe I. Crawford, Atty. Gen., and John A. Holmes, State's Atty., for the State.


The petitioner, William Walter Taylor, presented to this court his petition for a writ of habeas corpus, alleging therein that he was illegally restrained of his liberty by the sheriff of Hughes county. The petitioner set forth in his petition a copy of the indictment, his plea thereto, and judgment of the circuit court of Hughes county. This court thereupon issued its writ of habeas corpus to the sheriff of said Hughes county, who, in obedience to the command in said writ contained, brought before this court the said petitioner, and made return of the cause of his imprisonment and detention by him as sheriff of said county. From the petition and the return, which contain copies of the same indictment, plea, and judgment, it appears that the petitioner was indicted by the grand jury of Hughes county for the crime, as stated generally in the indictment, of “embezzlement.” To this indictment the prisoner pleaded guilty as charged in the indictment, and the petitioner was thereupon adjudged by the circuit court of the Sixth judicial circuit, in and for Hughes county, to be imprisoned in the state's prison of the state of South Dakota for the period of five years. The learned counsel for the petitioner contend that the law under which the petitioner was indicted did not authorize the court to impose a sentence of imprisonment for a period exceeding two years, and that as the sentence imposed was for a period of five years the judgment is void, and the petitioner is entitled to be discharged from custody. The learned attorney general and state's attorney insist that the court was authorized to impose a sentence of five years under the law. But they further insist that, if the sentence for five years was not authorized by law, the judgment is a legal and valid judgment for two years, and hence the petitioner would not be entitled to be discharged until the end of the two years, in any event.

The last proposition of counsel is, in our view of the case, the only one necessary to be discussed on this application; and we have not, therefore, considered, and do not express any opinion upon, the first proposition of the counsel, namely, as to whether or not the sentence should have been limited to two years. Assuming, then, for the purposes of this decision only,-but, as before stated, without deciding or expressing any opinion upon the question,-that the circuit court had no authority to sentence the petitioner for a period exceeding two years, is the judgment of the circuit court void in toto, or is it only void as to the period in excess of two years? If the judgment is absolutely void, then the petitioner would be entitled to his discharge. But if valid for the two years, and only void for the excess, he must be remanded, as his detention at this time is legal.

There is an irreconcilable conflict in the authorities upon the question as to whether such a judgment is void as to the entire sentence, or only void as to the excess. After a careful consideration of the subject, and an examination of nearly all the authorities cited, we are of the opinion that the weight of authority at the present time is that such a judgment is valid to the extent that the court had power or authority to sentence a defendant, and only void as to the excess, and that a defendant may lawfully be held under such a judgment for the period for which the court had power and authority to sentence him. This seems to have been the view taken by the supreme court of New York in Ex parte Sweatman, reported in 1 Cow. 144, decided in 1823, and that decision has since been generally followed in that state. People v. Liscomb, 60 N. Y. 559;People v. Jacobs, 66 N. Y. 8;People v. Baker, 89 N. Y. 460. The supreme court of Ohio has taken the same view. Ex parte Shaw, 7 Ohio St. 81; Ex parte Van Hagan, 25 Ohio St. 426. The Massachusetts supreme court holds a similar doctrine. Sennott's Case, 146 Mass. 489, 16 N. E. 448. In the latter case the court says: “The better rule seems to be that, where a court has jurisdiction of the person and of the offense, the imposition, by mistake, of a sentence in excess of what the law permits, is within the jurisdiction, and does not render the sentence void, but only voidable by proceedings upon a writ of error.” The supreme court of Wisconsin, in the cases of In re Graham and In re McDonald, 74 Wis. 450, 43 N. W. 148, clearly announces the same doctrine. In those cases the sentence was in one case for 13 years, and in the other for 14 years, while the law under which the convictions were had limited the punishment to 10 years. The defendants applied for writs of habeas corpus, upon the ground that “the sentences were for a term in excess of the period fixed by statute,” and therefore void. The court, in its decision, says: We deny the writs for the reason that the error in the judgments does not render them void, or 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 a writ of error. *** But the judgments are not void.” Graham made a second application for the writ, which was again denied; and the case was brought before the supreme court of the United States upon writ of error. and the decision in the latter court affirmed. The case is reported as In re Graham, 138 U. S. 461, 11 Sup. Ct. 363. In its decision the supreme court of the United States, speaking through Mr. Justice Field, says: “That the prisoner should not have been sentenced for any time in excess of ten years is very evident. When the ten years have expired, it is probable the court will order the prisoner's discharge, but until then he has no right to ask the annulment of the entire judgment. Such being the ruling of the state court, and there being nothing in it repugnant to any principle of natural justice, we think that the reason given for a refusal of the writ of habeas corpus in the court below at the present time is a sound one.” The same doctrine is held by the supreme court of Iowa (Elsner v. Shrigley, 80 Iowa, 30, 45 N. W. 393) and the supreme court of South Carolina (Ex parte Bond, 9 S. C. 80).

The counsel for the petitioner have cited quite a number of decisions made by courts whose opinions are entitled to great consideration,holding that such a judgment is entirely void, and that the party is entitled, in such case, to his discharge from custody. In the cases of Ex parte Page, 49 Mo. 291, and Ex parte Cox (Idaho) 32 Pac. 197, the supreme court of Missouri and the supreme court of Idaho held, squarely, that such a judgment is void. We are inclined to the opinion that the case cited from California, of Ex parte Kelly, 65 Cal. 154, and other late cases in that state, fairly support the contention of counsel; and we are inclined to include that state with Missouri and Idaho, as holding the doctrine that such a judgment as we are assuming exists in this case would be void, and the defendant entitled to his discharge. Indiana may also be included as holding a similar doctrine, though by a divided court. Miller v. Snyder, 6 Ind. 7. Mr. Black, in his work on Judgments (section 258), takes a similar view of such a judgment. But his work was evidently written before the later decisions in Massachusetts and Wisconsin, and the decisions of the supreme court of the United States, that we shall subsequently refer to. And we think that if that learned law writer was to revise his work, in view of these later decisions, he would arrive at a different conclusion. In the light, therefore, of these later decisions, we are unable to give to his conclusions the consideration that they otherwise might be entitled to. And counsel for the petitioner insists that this court has decided this question in Re Lackey, 62 N. W. 134. But it will be noticed, by the statement of facts in the opinion in that case, that Lackey had served out the legal part of his sentence, and this court held that, such being the case, he was entitled to his discharge, as the latter part of the sentence was void. If the petitioner in the case at bar had served his two years, for which he could have been, as it seems to be conceded, legally sentenced, this court, under the rule laid down in the Lackey Case, if it should be of opinion that two years was the extent to which he could be sentenced, might discharge him. But that is not the case now before us.

We have omitted a number of cases cited by counsel for petitioner, for the reason that, in our view, they involve entirely different questions from the one now before us, or support the contention of counsel for the state. As, for example, Ex parte Lange, 18 Wall. 176, is confidently relied upon as supporting the contention of the petitioner. But that case, even without the aid of subsequent decisions of the supreme court of the United States, to which we shall refer, seems to us to clearly sustain the view that we take of this judgment. In that case a circuit court of the United States had rendered a judgment, and sentenced a defendant to pay a fine and to imprisonment, when the law only authorized the court to impose a fine or imprisonment. The defendant paid the fine, and subsequently that court set aside the judgment it had rendered, and sentenced the defendant to imprisonment. The defendant, being taken into custody...

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