Lane v. Hobbs

• Decision Date: 24 June 1965
• Docket Number: No. 30648,30648
• Citation: 246 Ind. 640,208 N.E.2d 182
• Parties: Ward LANE, as Warden of the Indiana State Prison, Appellant, v. Arnold G. HOBBS, Appellee.
• Court: Indiana Supreme Court

Page 182

208 N.E.2d 182

246 Ind. 640

Ward LANE, as Warden of the Indiana State Prison Appellant, v. Arnold G. HOBBS, Appellee.

No. 30648.

Supreme Court of Indiana.

June 24, 1965.

John J. Dillon, Atty. Gen., of Indiana, David S. Wedding, Deputy Atty. Gen., for appellant.

Ralph W. Probst, Probst & Probst, Kendallville, for appellee.

ARTERBURN, Judge.

This is an appeal from the granting of a writ of habeas corpus by the LaPorte Circuit Court, which released the appellee, Arnold G. Hobbs, from the Indiana State Prison where he was committed to serve a fifteen year sentence by the Circuit Court of Allen County, Indiana for embezzlement.

After the jury's verdict of guilty, the court fixed the sentence of fifteen years.

The appellee contends that the penalty fixed by the statute was a determinate period of not less than two nor more than twenty years, which it was the duty of the jury to fix instead of the court under the statute, and that therefore, after he had served the minimum of two years, he was entitled to be discharged from prison, since the court had no jurisdiction to fix any greater penalty than the minimum under the authority of Witte v. Dowd, Warden (1951), 230 Ind. 485, 102 N.E.2d 630 and Shoemaker v. Dowd, Warden (1953), 232 Ind. 602, 115 N.E.2d 443.

These cases are superseded by Dowd, Warded v. Todd (1962) 243 Ind. 232, 184 N.E.2d 4. There we reviewed and considered these cases and others like them in view of the new rule, 2-40B. This rule provides in substance that whenever it appears an incorrect sentence has been imposed, application may be made by the objecting party for the correction of the same to the court imposing the sentence originally, from which ruling an appeal may be taken to the Supreme Court. The rule, approved in 1954, made plain and certain the remedy when it is contended an erroneous sentence has been imposed. It did away with the fiction that the court lost 'jurisdiction' to impose an erroneous or excessive sentence. We stated there (p. 236, 184 N.E.2d p. 5) 'Far too frequently the term 'lack of jurisdiction' is loosely used and overworked as a catchall to support a desired remedy. From such a premise it is then argued that all actions of a court are 'void'. We cannot ascribe 'lack of jurisdiction' indiscriminately as a basis for achieving every remedy, however desirable.

'In the case before us the court had general jurisdiction of the subject matter, namely, the crimes involved. The court also had jurisdiction of the party involved. Under no theory can it be urged that there was lack of jurisdiction in the Marion Criminal Court, Division Two, or that the judgment was void. At the most, it was contrary to law and therefore erroneous. * * *'

Later, this Court reaffirmed the operation of this rule and that the trial court retained jurisdiction to correct an erroneous sentence, rather than lost it by reason of any error. Woods v. State (1955), 234 Ind. 598, 130 N.E.2d 139; Wagner v. State (1963), 243 Ind. 570, 188 N.E.2d 914.

We again state that the remedy to correct an erroneous sentence is through Rule 2-40B and not by habeas corpus in another trial court under any theory that the trial court imposing the sentence had lost 'jurisdiction'.

It has never been the law in Indiana that one trial court may review the judgment or errors of another trial court by or through a writ of habeas corpus. In habeas corpus, one trial court may not go behind the judgment of another trial court. In the case before us we call attention to the fact that to review the judgment of the Allen Circuit Court, the LaPorte Circuit Court had to go back of the judgment into the record and view the jury's verdict. If it may do that, then it may review the motion for a new trial or another alleged intervening error. The judgment of the trial court merely reads as follows:

'It is, therefore, ordered, adjudged and decreed by the Court that the said defendant, Arnold G. Hobbs, is guilty of the offense of Embezzlement, as charged in the indictment, and that he be and he is hereby committed to the custody and control of the Warden of the Indiana State Prison for a period of fifteen (15) years, and that he be fined in the penal sum of One Thousand ($1,000.00) Dollars, and that he pay and satisfy the costs herein taxed.'

Applying the principles enunciated in Dowd, Warden v. Todd (1962), 246 Ind. 232, 184 N.E.2d 4, the Allen Circuit Court had jurisdiction of such matter, namely, the trial of causes in embezzlement. It also had jurisdiction of the party involved and the judgment on its face was valid. If there was error occurring prior to the judgment, application must be made to the Allen Circuit Court for correction of its own error. Another trial court of coordinate jurisdiction under no theory of 'lack of jurisdiction' may review or correct the action in a habeas corpus case. The Supreme Court of the State of Indiana was created for the purpose of finally determining errors in trial courts of this State, and Rule 2-40B so provides for such review in cases where an erroneous sentence has been imposed.

We further call attention to the fact that other remedies also were open to the appellee herein for correction of any alleged error in the sentence at the time the jury's verdict was returned. If he found it defective, prejudicial or in error, it was his duty at that time to object, pointing out the alleged error in the trial court before the jury was discharged. Certainly he may not stand by silently and wait until after the statutes of limitation have run and then go into another court through habeas corpus, asking that the judgment be declared void. A party may not stand idly by, make no objections to what he considers prejudicial error in a trial or proceeding, and then attempt to claim error later in another proceeding in another court nor even on appeal in the same case. If a party makes no objection at the time when the alleged error can be corrected, he waives the alleged error or right to claim it later, even on appeal. Such a principle is only fair to the opposing party and to the Court.

In Myles v. State (1955), 234 Ind. 129, p. 134, 124 N.E.2d 205, p. 207, we stated:

'There is no contention appellant was not represented by competent counsel, and assuming without deciding that each juror did not say it was his verdict, it was the duty of appellant to object to its return before the jury was discharged. If the court's intrinsic record did not correctly state the proceeding at the time the jury was polled, it was the duty of appellant to bring the matter into the record by a special bill of exceptions, * * *.'

In State v. Arnold (1895), 144 Ind. 651, p. 660, 42 N.E. 1095, p. 1097, we stated:

'* * * We had occasion in the recent case of May v. State, supra [140 Ind. 88, 39 N.E. 701], to consider the effect of a defendant's silence when a verdict is returned assessing punishment smaller than that prescribed, and we have no reason to deny the soundness of the conclusion there reached. His silence is a waiver of the irregularity. [r]ediculous is it might appear that a defendant charged with crime should be required to object to an irregularity favorable to him, it is no more so than to permit him, after receiving the benefit of a diminished punishment, to ask that by reason of that benefit he be permitted to go scotfree.'

In Mountjoy v. State (1881), 78 Ind. 172, at page 175, the principle is summed up:

'* * * The general rule in a criminal as well as in a civil cause is, that, where a party is present in court when a judgment is rendered against him, he can not complain of the judgment in this court, unless he has in some way reserved an exception upon it. * * *'

In Evans v. State (1898), 150 Ind. 651, 655, 50 N.E. 820, 821, it was pointed out as the 'settled law in this State' that an objection and the issue based thereon as to any judgment or verdict 'must be first presented to the court below' and 'the objection must particularly point out the defect or mistake complained of, and ask that the same be corrected. * * * Unless this is done no objection can be made available for reversal here, however erroneous in form or substance such judgment may appear to be.'

In May v. State (1894), 140 Ind. 88, p. 92, 39 N.E. 701, p. 703, it is said with reference to an irregular verdict in a criminal case:

'The instances where the doctrine of waiver has been held to apply have been stated in Elliott's Appellate Procedure (section 290) as follows: 'Errors of the gravest character may be expressly or impliedly waived by a defendant in a criminal case. * * * Failure to object to the competency of a judge will operate as a waiver. An accused may waive his right to the benefit of the constitutional provision that he shall be confronted by the witnesses for the state. * * * Objections to the empaneling of the jury, to the qualifications and the conduct of jurors, are waived unless seasonably interposed. * * * Misconduct of counsel in argument must be specifically and duly objected to, or there will be a waiver. In almost every conceivable form, the doctrine of waiver has been enforced in criminal cases. [i]t has been enforced in respect to pleadings, in respect to changes of venue, and in respect to the admission and exclusion of evidence. * * * It is entirely safe to say that many constitutional rights, and all rights not constitutional, or not affecting the jurisdiction of the subject, may be waived."

The Court further made the statement in conclusion (p. 94, 39 N.E. p. 703):

'While our attention has not been called to a case directly in point, we believe that in principle, and by the analogy of the cases cited, there can be no doubt that the failure of the appellant to ask that the verdict be corrected waived all right to assail the verdict for the irregularities complained of.'

The appellee-defendant here made no prompt objections to the verdict in the trial court pointing out...