King v. Jameson
| Decision Date | 02 February 1944 |
| Docket Number | 8692 |
| Parties | STATE OF SOUTH DAKOTA ex rel. J.B. KING, v. G. NORTON JAMESON, |
| Court | South Dakota Supreme Court |
George J. Danforth, Danforth & Danforth, Sioux Falls, SD
Attorney for Plaintiff
George T. Mickelson, Attorney General
E. D. Barron, Asst. Attorney General, Pierre, SD
Attorneys for Defendant
Opinion filed Feb 2, 1944; Rehearing Denied Feb 23, 1944
J. B. King, applicant for a writ of habeas corpus, is being held in the penitentiary at Sioux Falls, South Dakota. by virtue of a judgment of the Circuit Court, Second Judicial Circuit, Minnehaha County, South Dakota, bearing date the 6th day of November, A. D. 1922, sentencing him to imprisonment in that institution for the remainder of his natural life. As will appear from the opinion in State v. King, 62 SD 184, 252 NW 36, 37, the information upon which the applicant was tried charged
“... The said J. B. King had been theretofore duly and legally arrested, tried and convicted on the 24th day of March, 1921, in the County of Bon Homme, State of South Dakota, on the charge of Grand Larceny, and had been on said day duly sentenced to serve a term of two years in the state penitentiary at Sioux Falls, South Dakota. ..
“‘And that thereafter and while each of said defendants were incarcerated in the said South Dakota state penitentiary and serving the sentences thereinbefore stated, and on the 17th day of August, 1922 ... the said defendants and each of them, being then and there armed with dangerous weapons, namely knives about six or eight inches long, did then and there unlawfully, wilfully and feloniously commit an assault and battery upon the person of Arthur Muchow by then and there forcibly striking, cutting, beating, bruising and wounding the said Arthur Muchow with the said knives aforesaid with the intent upon the part of the said defendants to kill and murder the said Arthur Muchow, and the said knives used as aforesaid being such as was likely to produce death, and the said defendants and each of them, did then and there and by said means commit the crime of assault with the intent to kill, contrary to the form of the Statute in such case made and provided. ...’” The judgment of the court, among other things recites, “... and the jury having heard the evidence ..., returned into open Court, ... their oral verdict ‘Guilty as charged in the information,’ ....” Upon former applications this recital has been accepted as true. In connection with the present application it is made to appear by a certified copy of the minutes of the court that the verdict of the Jury, as recorded therein, reads as follows: “We the jury find the defendant guilty of assault with intent to kill, second offense as charged in the information.”
Predicated upon this record, the contention now made is that the applicant was in fact convicted of the included offense of assault with intent to kill, second offense, upon which the maximum sentence the court was empowered to impose was for a term of ten years, and that therefore the sentence being excessive, the judgment is void.
A preliminary matter should be put aside before we turn to a consideration of this principal issue. We have quoted both the recital of the judgment and the full verdict as recorded in the minutes of the court. It is settled that as between the irreconcilable recitals of a judgment and the record as a whole, the record controls, and such a judgment is vulnerable to collateral attack based upon such record if its invalidity is made to appear thereby. Illinois Trust & Sav. Bank v. Town of Roscoe, 46 SD 477, 194 NW 649. Habeas corpus is but a method of collateral attack of a judgment. State v. King, supra. The statute, § 4932, Rev. Code 1919, required the clerk to record the verdict in full in the minutes. We have concluded that the principle to which we have adverted is applicable here and that we must accept the record as reflecting the true finding of the jury.
Certain well-settled principles serve as postulates in a consideration of the applicant’s principal contention. If the judgment under which the applicant is held is void, the writ should issue and he should be discharged. SDC 37.5504; State v. King, supra. A judgment which imposes a sentence in excess of that: which is authorized by law is void as to the excess. In re Taylor, 7 SD 382, 64 NW 253, 45 LRA 136, 58 AmStRep 843; In re Lackey, 6 SD 526, 62 NW 134. See Lee Lim v. Davis, 75 Utah 245, 284 P. 323, 76 ALR 468, at page 476, and 25 AmJur 188, § 59. As the applicant has been imprisoned more than ten years, the question for decision is whether his position that the court was without power to impose more than a ten-year sentence under the recorded verdict is well taken.
The sentencing power of the court with which we are here concerned arose in part from the following sections.
§ 3612, Rev. Code 1919. “Every person who having been convicted of any offense punishable by imprisonment in the state penitentiary, commits any crime after such conviction, is punishable therefor as follows
“1. If the offense of which such person is subsequently convicted is such that upon a first conviction an offender would be punishable by imprisonment in the state penitentiary for any term exceeding five years, such person. is punishable by imprisonment in the state penitentiary for a term not less than ten years
2. If such subsequent offense is such that upon a first conviction the offender would be punishable by imprisonment in the state penitentiary for five years, or any less term, then the person convicted of such subsequent offense is punishable by imprisonment in the state penitentiary for a term not exceeding ten years.”
“Whenever any person is declared punishable for a crime by imprisonment in the state penitentiary for a term not less than any specified number of years, and no limit to the duration of such imprisonment is declared, the court authorized to pronounce judgment upon such conviction may, in its discretion, sentence such offender to imprisonment during his natural life, ....”
From a reading of these sections it will be noted that if the offense under consideration as a second or subsequent offense would upon a first conviction be punishable by a term exceeding five years, it was punishable under § 3612, subd. 1, supra, by a term of “not less than ten years” and therefore under § 3617, supra, was punishable by life imprisonment. State v. Foreman, 68 SD 412, 3 NW2d 477. On the other hand, if as an original offense the crime was punishable for five years or less, as a subsequent or second offense, it was punishable by a sentence of not more than ten years. § 3612, subd. 2, Rev. Code 1919, supra.
The information in legal effect charged the applicant with the commission of an assault and battery upon another by means of a deadly weapon with intent to kill as a second offense and was obviously framed under § 4051 and § 3612, Rev. Code 1919. State v. Foreman, supra. § 4051 reads as follows
“Every person who shoots or attempts to shoot at another, with any kind of firearm, air gun, or other means, with intent to kill any person, or who commits any assault and battery upon another by means of any deadly weapon, or by any other means or force likely to produce death, with intent to kill any other person, is punishable by imprisonment in the state penitentiary not exceeding ten years.”
In passing, we observe that this section is divisible and describes separate crimes of like grade. However, each of the offenses so defined embrace distinct elements, and an information charging one of these offenses does not include any other crime described in that section. Territory v. Conrad, I Dak. 363, Reprint p. 348, 46 NW 605. We therefore give no further consideration to the other aggravated assaults described in that section. The information as drawn, however, did embrace the elements of other lesser assaults. By § 4052, Rev. Code 1919, it was provided: “Every person who is guilty of an assault with intent to kill any person, the punishment for which is not prescribed in the preceding section, is punishable by imprisonment in the state penitentiary not exceeding five years, or in a county jail not exceeding one year, or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment.”
Section 4077, Rev. Code 1919 provided:”An assault is any wilful and unlawful attempt or offer, with force or violence, to do a corporal hurt to another” and § 4078, Rev. Code 1919 provided: “A battery is any wilful and unlawful use of force or violence upon...
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