Jordan v. Swope

• Decision Date: 09 March 1932
• Docket Number: No. 3759.,3759.
• Citation: 36 N.M. 84,8 P.2d 788
• Parties: JORDANv.SWOPE, Superintendent of State Penitentiary.
• Court: New Mexico Supreme Court

36 N.M. 84

8 P.2d 788

JORDAN

v.SWOPE, Superintendent of State Penitentiary.

No. 3759.

Supreme Court of New Mexico.

March 9, 1932.

Syllabus by the Court.

Inseparable sentence to imprisonment for longer time than authorized is void in toto.

Sentence of imprisonment for 6 to 8 years imposed on habitual criminal for uttering fraudulent checks, notwithstanding Habitual Criminal Act was inapplicable, cannot be considered valid sentence of 5 years for uttering fraudulent checks (Comp. St. 1929, § 35- 1910 and § 35-4201 et seq.).

Where alleged illegal restraint is based on void sentence after legal conviction, petitioner in habeas corpus proceeding should be remanded or detained for new sentence (Comp. St. 1929, §§ 63-119, 63-120).

In criminal case, jurisdiction to render legal judgment is not terminated by rendition of void judgment.

1. An inseparable sentence to imprisonment for longer term than authorized by statute is void in toto.

2. A sentence of imprisonment for 6 to 8 years for utterance of fraudulent checks by habitual criminal cannot be considered a sentence of 5 years for uttering fraudulent checks.

3. Where illegality of restraint complained of in habeas corpus is imposition of void sentence on legal conviction, petitioner should be remanded or detained for new sentence.

4. Jurisdiction to render legal judgment in a criminal case is not terminated by rendition of void judgment.

Habeas corpus proceeding by J. J. Jordan against E. B. Swope, Superintendent of the New Mexico State Penitentiary.

Petitioner remanded to the custody of the Sheriff of Bernalillo County.

Where alleged illegal restraint is based on void sentence after legal conviction, petitioner in habeas corpus proceeding should be remanded or detained for new sentence. Comp.St.1929, §§ 63-119, 63-120.

Harry S. Bowman, of Santa Fé, for petitioner.

E. K. Neumann, Atty. Gen., and Quincy D. Adams, Asst. Atty. Gen., for respondent.

WATSON, J.

By this proceeding in habeas corpus petitioner seeks his discharge from the custody of the superintendent of the penitentiary, contending that he is held under void commitments.

In the district court of Bernalillo county petitioner pleaded guilty September 24, 1929, to several informations charging him with as many separate offenses of uttering fraudulent checks, for which the statutory penalty is a fine of not more than $5,000 or imprisonment for not more than 5 years, or both. 1929 Comp. § 35-1910. Sentence was postponed.

On October 7th following, a corresponding number of additional informations was filed, reciting these convictions, alleging two former convictions of felonies, and invoking the provisions of the Habitual Criminal Act (1929 Comp. § 35-4201 et seq.). To these informations petitioner pleaded guilty, and, upon each, was thereupon sentenced to be imprisoned in the penitentiary for not less than 6 nor more than 8 years, such sentences to run concurrently. The several commitments under which petitioner has since been held are based upon these judgments.

The several crimes of uttering fraudulent checks were committed on May 25, 1929. The Habitual Criminal Act, Laws 1929, c. 58, did not take effect until ninety days after the adjournment of the Legislature, March 9, 1929. For this reason the Attorney General admits that the judgments, in so far as based upon the Habitual Criminal Law, and as in excess of what they might otherwise have been, are void. He also admits that the failure of petitioner to claim his constitutional right at the time of sentence is no waiver of it.

The Attorney General contends that for the crime of which there was a legal conviction, upon plea of guilty, the statute will support a sentence of 5 years; that to such extent the present sentence and commitment are legal; and that petitioner is not entitled to be discharged until he shall have served such term.

Undoubtedly such a sentence might legally have been pronounced. It is plain, however, that it was not. A different sentence was imposed for a different crime.

In Ex parte Cica, 18 N. M. 452, 137 P. 598, 51 L. R. A. (N. S.) 373, the petitioner was sentenced to fine and imprisonment under a statute authorizing fine or imprisonment. We held that only a part of the sentence was illegal, and that, not having paid the fine, petitioner could not avoid the imprisonment through habeas corpus. The distinction between that case and this is obvious.

The Attorney General contends that Ex parte Cica, supra, commits us to the majority rule that a sentence exceeding the statutory limit is void only as to the excess. We need not question this, since as we view the matter, the line of cases similar to In re Taylor, 7 S. D. 382, 64 N. W. 253, 45 L. R. A. 136, 58 Am. St. Rep. 843, is as readily distinguishable.

The principle of the Cica Case is that, if a sentence is severable, as between the legal and the void, the latter does not necessarily vitiate the former. This is but the application of common sense to the problem. Thus, while doing justice to the individual, we protect the interests of society as well. This principle is the same in the ordinary case of an excessive sentence. If, for a given crime, a 6-year sentence has been imposed, a 5-year sentence is necessarily included in it; and justice to the individual does not require, and fairness to the public does not permit, remission of the legal merely because of an ineffectual and wholly void excess.

[1][2] But this principle can operate only in fairness to the individual. It depends upon severability. The present sentence cannot be severed. To constitute a legal sentence there must be both statutory authority and the act of the judge. In the present case we may draw a line at five years, and say that to that extent the sentence is supported by the statute. But we cannot say that it is supported by the act of the judge. He imposed a sentence of from 6 to 8 years for the crime of uttering fraudulent checks committed by an habitual criminal. He imposed no sentence whatever for the simple crime of uttering fraudulent checks. We cannot speculate as to what the court would have done if aware of the inapplicability of the habitual criminal statute. We cannot, ourselves, fix a penalty and impose sentence. Hence, we are left with an inseverable judgment, void in toto, because beyond the court's power.

[3][4] Another contention of the Attorney General, however, we find to be sound. While the petitioner's present detention is thus illegal, it does not follow that he must be unconditionally discharged. By his own showing he is guilty, and has been legally convicted, of felonies for which no legal judgment has been rendered. Justice to the state requires that the illegal judgment be replaced by a valid one. Justice to the petitioner requires no more. It would be a weakness in the law and an undue yielding to individual right to hold that a convicted person may stand by without objection while a void judgment is rendered, and then escape all consequences of his guilt by attacking collaterally the legality of his restraint. Had he excepted to the sentence and appealed, his only relief would have been a reversal and a remand of the cause for new sentence. State v. Archer (Foster), 32 N. M. 319, 255 P. 396. It...