Lingo v. Hann, 33741

• Citation: 161 Neb. 67,71 N.W.2d 716
• Decision Date: 19 August 1955
• Docket Number: No. 33741,33741
• Parties: Arnold L. LINGO, Appellee, v. Herbert H. HANN, * Warden of the Nebraska State Penitentiary, Appellant.
• Court: Supreme Court of Nebraska

Page 716

71 N.W.2d 716

161 Neb. 67

Arnold L. LINGO, Appellee, v. Herbert H. HANN, ^* Warden of the Nebraska State Penitentiary, Appellant.

No. 33741.

Supreme Court of Nebraska.

Aug. 19, 1955.

Syllabus by the Court

1. Habeas corpus is a collateral and not a direct proceeding when regarded as a means of attack upon a judgment sentencing a defendant.

2. If a court or a judge thereof which renders a judgment, or who enters an order, does not have jurisdiction to perform the act done, either because the proceeding or the law under which it is taken is unconstitutional, or for any other reason the judgment is void, it may be questioned collaterally, and a defendant who is imprisoned under and by virtue of it may be discharged.

3. To release a person from a sentence of imprisonment by habeas corpus, it must appear that the sentence was absolutely void.

4. Juvenile courts do not have the sole or exclusive jurisdiction of children under 18 years of age who have violated our laws.

5. The county attorney is not limited by the Juvenile Court Act in any way in his duty to file proper complaints against wrongdoers and prosecute the same.

6. The rights guaranteed to an accused in a criminal prosecution by Article I, section 11, of the Constitution of Nebraska are all personal privileges and not having been conferred from any consideration of public policy are not inalienable but may be insisted upon or abandoned at pleasure.

7. Due process of law requires only that the accused be given sufficient notice of the nature of the charge against him in order that he may prepare a defense and plead the judgment as a bar to any subsequent prosecution for the same offense.

8. A preliminary hearing before a magistrate is not a criminal prosecution or trial within the meaning of Article, I, section 11, of the Constitution of Nebraska.

9. There apparently are no accommodations at the State Penitentiary to care for and handle children under 16 years of age in the manner contemplated by section 43-212, R.R.S.1943. It is the duty of the state to provide such accommodations but the fact that none are available does not take from a trial court its authority, in a proper case, to sentence a child under 16 years of age thereto.

Clarence S. Beck, Atty. Gen., Ralph D. Nelson, Asst. Atty. Gen., for appellant.

Norma VerMaas, Lincoln, for appellee.

Heard before SIMMONS, C. J., and CARTER, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ., and FLORY, District Judge.

WENKE, Justice.

This is a habeas corpus action instituted in the district court for Lancaster County by Arnold L. Lingo who was, at the time he filed his application for a writ on March 19, 1954, an inmate of the State Penitentiary. The district court allowed the writ. A hearing was thereafter had on the writ and the warden's return thereto. The court, based on the evidence adduced at the hearing, ordered the petitioner discharged. The warden filed a motion for new trial, subsequently amended, and has appealed from the overruling thereof.

We will herein refer to Arnold L. Lingo as the petitioner and to the warden of the State Penitentiary as respondent.

The statute relating to habeas corpus provides: 'When the judge shall have examined into the cause of the caption and detention of the person so brought before him, and shall be satisfied that the person is unlawfully imprisoned or detained, he shall forthwith discharge such prisoner from confinement.' Section 29-2806, R.R.S.1943.

'Habeas corpus is a collateral and not a direct proceeding when regarded as a means of attack upon a judgment sentencing a defendant.' Jackson v. Olson, 146 Neb. 885, 22 N.W.2d 124, 125, 165 A.L.R. 932. See, also, Swanson v. Jones, 151 Neb. 767, 39 N.W.2d 557.

'Habeas corpus is a writ of right but not a writ of course, and probable cause must first be shown for its allowance, * * *.' In re Application of Dunn, 150 Neb. 669, 35 N.W.2d 673.

'In a petition for a writ of habeas corpus, if relator sets forth facts which, if true, would entitle him to discharge, then the writ is a matter of right and relator should be produced and a hearing held thereon to determine questions of fact presented, but if relator shows by the facts alleged in his petition for the writ that he is not entitled to relief, then the writ should be denied.' In re Application of Dunn, supra. See, also, Swanson v. Jones, supra.

'* * * if a court or a judge thereof which renders a judgment, or who enters an order, has not jurisdiction to perform the act done, either because the proceeding or the law under which it is taken is unconstitutional, or for any other reason the judgment is void, it may be questioned collaterally, and a defendant who is imprisoned under and by virtue of it may be discharged.' In re Resler, 115 Neb. 335, 212 N.W. 765, 766.

'Habeas corpus will not lie to discharge a person from a sentence of penal servitude where the court imposing the sentence had jurisdiction of the offense, had jurisdiction of the person of the defendant, and the sentence was within the power of the court to impose.' Jackson v. Olson, supra. See, also, Swanson v. Jones, supra.

'To release a person from a sentence of imprisonment by habeas corpus, it must appear that the sentence was absolutely void.' Jackson v. Olson, supra. See, also, Swanson v. Jones, supra.

Petitioner did, on October 12, 1951, in the district court for Buffalo County, plead guilty to the crimes of robbery from the person by putting in fear and of stealing an automobile. See sections 28-414 and 28-522, R.R.S.1943, for the definitions of what constitute these crimes and the punishment that may be imposed upon anyone found guilty thereof. The court thereupon, within the limits of these statutes, sentenced petitioner to the State Penitentiary for terms of 12 and 5 years respectively on these two counts, ordering the sentences to run concurrently. Petitioner was then taken to the State Penitentiary to serve these sentences and was there confined for that purpose when he instituted this action to be released therefrom.

Petitioner was born on March 31, 1936, and on September 28, 1951, when the crimes to which he pleaded guilty were committed, and on October 12, 1951, when he was sentenced, he was 15 years of age. The principal question raised by this appeal is, did the district court have authority to commit petitioner to the penitentiary? It is petitioner's thought that the district court was without authority to do so because of the Juvenile Court Act. See Ch. 43, art. 2, R.R.S.1943.

District courts have general and original jurisdiction in criminal cases except when otherwise provided. Section 24-302, R.R.S.1943. The judges thereof may admit persons charged with a felony to plead guilty and then pass such sentence as may be prescribed by law. Art. V, § 9, Constitution of Nebraska.

Section 28-414, R.R.S.1943, provides that whoever is found guilty of robbing another by putting in fear shall be imprisoned in the penitentiary for a term of not less than 3 nor more than 50 years. Section 28-522, R.R.S.1943, provides that whoever is found guilty of stealing an automobile shall be imprisoned in the penitentiary for not less than 1 year nor more than 10 years. These statutes provide that this punishment may be imposed upon all persons found guilty of the crimes covered thereby and the district court may do so unless forbidden by some other legislative act which supersedes these statutes or restricts their operation.

In regard to children under 18 years of age Nebraska's Constitution provides: 'The Legislature may provide by law for the establishment of a school or schools for the safe keeping, education, employment and reformation of all children under the age of eighteen years, who, for want of proper parental care, or other cause, are growing up in mendicancy or crime.' Art. VII, § 12, Constitution of Nebraska.

The first act of the Legislature in reference thereto was enacted in 1879. See Laws 1879, p. 413. At present section 83-463, R.R.S.1943, provides: 'The state industrial school for juvenile offenders shall be a school for the retention, education, discipline, industrial training and reformation of male juvenile offenders.' See sections 83-463 to 83-474, R.R.S.1943, for present legislation relating to the state industrial school. This school is now referred to as Boys' Training School. See section 83-107.02, R.S.Supp., 1953. These statutes relating to the state industrial school, insofar as here material, provide: 'When a boy of sane mind, under the age of eighteen years, has been found guilty of any crime, except murder or manslaughter, in any court of record in this state, the court may order that the boy be committed to the state industrial school.' Section 83-465, R.R.S.1943. (Emphasis ours.)

At the time petitioner was sentenced the Legislature had also provided that: 'Any person, not less than sixteen nor more than thirty years of age at the time of conviction of a felony for the first time, may be sentenced to confinement in the state reformatory instead of to the state penitentiary, when in the judgment of the trial court the person is capable of reformation and the sentence is compatible with the general welfare.' Section 83-455, R.R.S.1943. (Emphasis ours.)

The 1953 Legislature amended this act to read as follows: 'Any person, not less than sixteen years of age at the time of conviction of a felony for the first time, may be sentenced to confinement in the state reformatory instead of to the state penitentiary, when in the judgment of the trial court the persons is capable of reformation and the sentence is compatible with the general welfare.' Section 83-455, R.S.Supp., 1953.

Thus it will be observed that upon a defendant being convicted of a felony one or more of these statutes may apply, depending upon the facts of the case, and the district court can sentence accordingly or, if the circumstances justify, may, under the provisions of section...