Kelley v. Meyers

• Citation: 263 P. 903,124 Or. 322
• Parties: KELLEY v. MEYERS, SUPERINTENDENT OF PENITENTIARY, ET AL.
• Decision Date: 31 January 1928
• Court: Supreme Court of Oregon

263 P. 903

124 Or. 322

KELLEY v. MEYERS, SUPERINTENDENT OF PENITENTIARY, ET AL.

Supreme Court of Oregon, En Banc.

January 31, 1928

Appeal from Circuit Court, Marion County; L. H. McMahan, Judge.

Proceedings by Mrs. Estella Kelley, in behalf of Ellsworth Kelley, for a writ of habeas corpus to secure the release of Ellsworth Kelley from the custody of H. W. Meyers, Superintendent of the State Penitentiary, and James Lewis, Warden. From a judgment dismissing the writ, petitioner appeals. Affirmed.

Martin L. Pipes, of Portland (Will R. King, John M Pipes, and Geo. A. Pipes, all of Portland, on the brief), for appellant.

Willis S. Moore and John H. Carson, both of Salem (I. H. Van Winkle, Atty. Gen., and Allan G. Carson, of Salem on the brief), for respondents.

RAND C.J.

This is an appeal from a judgment of the circuit court for Marion county, dismissing a writ of habeas corpus. It appears from the record that Ellsworth Kelley, the person in whose behalf the writ was sought, had been convicted on his own plea of guilty of the crime, defined by section 2034, Or. L., of aiding a prisoner to escape from the county jail of Josephine county, and that for said crime he had been sentenced to serve in the Oregon State Penitentiary for a term of 20 years. While so imprisoned, he participated with three other prisoners in an attempt to effect an escape, in which he and two of the others were successful. While making such escape John Sweeney, one of the guards, was killed. Upon being recaptured, Kelley was indicted for the murder of Sweeney, and upon trial for said offense was convicted of murder in the first degree and sentenced to be hung. Upon an appeal therefrom, that sentence and judgment was affirmed by this court (118 Or. 397, 247 P. 146). A transcript of the record of this court in said cause was then brought into the Supreme Court of the United States (273 U.S. 589, 47 S.Ct. 504, 71 L.Ed. 790) by virtue of a writ of error, and, after a consideration thereof by that court, the writ of error was dismissed for want of jurisdiction. Upon receipt of the mandate of the Supreme Court of the United States, it was here filed and entered of record, and the mandate of this court was then issued, remanding the cause to the circuit court for Marion county, with directions to proceed in executing the sentence and judgment against Kelley, and pursuant thereto judgment of death was again pronounced against him, and a warrant was duly issued directing that Kelley be delivered to the superintendent of the Oregon State Penitentiary, and appointing August 19, 1927, as the day upon which the judgment was to be executed. Two days before the time set for said execution, the writ in question was issued by one of the judges of the circuit court for Marion county, and upon final hearing thereof was dismissed by the judge who issued the writ.

It is contended that Kelley is entitled to have the writ sustained and to be discharged from custody upon the ground that sections 2034 and 2035, Or. L., which define, and prescribe the penalty of, the crime for the commission of which he was first convicted, and imprisoned, are unconstitutional because violative of article 1, § 16, of the Constitution of this state, which provides that: "Cruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense." Based upon the assumption that the provisions of these statutes were unconstitutional, it is, in effect, contended that Kelley's imprisonment in the penitentiary was without any authority of law and that he had the right to escape therefrom, and that if it became necessary to take human life in order to enable him to make such escape, he could do so without being guilty of any crime. The sole object of the writ is to secure the discharge of Kelley from custody, and, if there can be any efficacy in the writ, that result alone must follow, and this would necessitate a determination that both convictions were absolutely void and of no effect whatever.

In this state the statute expressly provides that "persons imprisoned or restrained by virtue of the judgment or decree of a competent tribunal of civil or criminal jurisdiction, or by virtue of an execution issued upon such judgment or decree," shall not be allowed to prosecute the writ. Section 628, Or. L. It also declares that:

"It shall be the duty of the court or judge forthwith to remand such party if it shall appear that he is legally detained in custody, * * * by virtue of the judgment or decree of any competent court of civil or criminal jurisdiction, or of any execution issued upon such judgment or decree; * * * and, that the time during which such party may be legally detained has not expired." Section 641, Or. L.

Again, the statute provides:

"But no court or judge, on the return of a writ of habeas corpus, has power to inquire into the legality or justice of any order, judgment, or process specified in section 628." Section 643, Or. L.

The effect to be given to these provisions of the statute has been under consideration by this court in numerous cases, and it has been uniformly held that unless it shall be made to appear that the judgment or process upon which the petitioner is detained is absolutely void, no relief can be had under a writ of habeas corpus. See Ex parte Foster, 69 Or. 319, 138 P. 849, and cases there cited. In that case this court quoted with approval the following excerpt from People ex rel. v. Liscomb, 60 N.Y. 559, 19 Am. Rep. 211:

"If the process is valid on its face, it will be deemed prima facie, and the prisoner must assume the burden of impeaching its validity by showing a want of jurisdiction. Error, irregularity or want of form is no objection; nor is any defect which may be amended or remedied by the court from which it issues. If there was no legal power to render the judgment or decree or issue the process, there was no competent court, and consequently no judgment or process. All is coram non judice and void."

Under these authorities and the rule which prevails everywhere, it is settled law that the judgment of a court of general or special and limited jurisdiction is reviewable upon habeas corpus only when it is void, and that no relief can be granted to the petitioner under the writ unless it is void. In such a case the only question presented for consideration is one of jurisdiction which may always be inquired into. It follows, therefore, that no relief can be obtained under this writ unless the judgment and sentence of the circuit court for Josephine county, as well as Kelley's subsequent conviction and sentence for the murder of Sweeney by the circuit court for Marion county, were wholly without authority of law and void for want of jurisdiction in said courts, and that if either of said cou...