Lowery v. Howard

• Decision Date: 30 October 1885
• Citation: 103 Ind. 440,3 N.E. 124
• Parties: Lowery v. Howard.
• Court: Indiana Supreme Court

103 Ind. 440

3 N.E. 124

Lowery

v.Howard.¹

Supreme Court of Indiana.

Filed October 30, 1885.

Appeal from Howard circuit court.

George H. Voigt and M. Z. Stannard, for appellant.

The Attorney General and F. B. Burke, for appellee.

HOWK, J.

On the twelfth day of September, 1885, Eli Lowery presented to the Hon. Charles P. Ferguson, judge of the Clark circuit court, in vacation, his verified petition or application for the issue of a writ of habeas corpus. In such application Lowery alleged that he was restrained of his liberty and illegally confined in the Indiana State Prison South, by the appellee, Howard, who was the warden of such prison. Upon the presentation of Lowery's application to him in the vacation of his court Judge Ferguson made the following order: “After duly considering such petition and application, it appearing upon the face thereof that Eli Lowery is in the custody of Andrew J. Howard, as warden of the Indiana State Prison South, by virtue of the final judgment of a court of competent jurisdiction, I do not think, under section 1119, Rev. St. 1881, I have any power to inquire into the legality of such judgment. In my opinion the facts stated in the petition do not make a prima facie case in favor of the petitioner, so as to authorize the issuing of a writ of habeas corpus, as prayed for. Therefore I now order that the petitioner's application for a writ of habeas corpus be and the same is refused.” Lowery excepted to this order of the judge, and has appealed therefrom to this court, and has here assigned such order as error. Lowery made a complete record of his conviction of murder in the first degree, and of his sentence to the Indiana State Prison South for and during his natural life, a part of his petition or application for the issue of a writ of habeas corpus. It appeared from this record that at the June term, 1876, of the Orange circuit court, in this state, an indictment was duly found and returned into open court, charging Lowery and four other named persons with the commission of the crime of murder in the first degree in Orange county; that afterwards, at the same term of such Orange circuit court, Eli Lowery appeared in person in open court, and, having been arraigned on such indictment, for plea thereto said that he was guilty as therein charged; that thereupon, on the same day and at the same term, the Orange circuit court being sufficiently advised, found that Eli Lowery was guilty of murder in the first degree, and that the Orange circuit court then and there adjudged that Eli Lowery was guilty as charged in the indictment of murder in the first degree, and assessed his punishment at imprisonment in the state's prison at Jeffersonville, Indiana, for and during his natural life.

After setting out this record in his petition or application, Eli Lowery alleged that the action of the Orange circuit court in finding him guilty and assessing his punishment as aforesaid without the intervention of a jury, and all subsequent proceedings in such cause, were erroneous, illegal, and void, as he was thereby deprived of his constitutional right to a trial by a jury, and that his restraint and confinement in such prison were illegal. In section 1119, Rev. St. 1881, it is provided as follows: “No court or judge shall inquire into the legality of any judgment or process whereby the party is in his custody, or discharge him when the term of commitment has not expired, in either of the following cases: * * * Second. Upon any process issued on any final judgment of a court of competent jurisdiction. * * *” We need not argue for the purpose of showing that the Orange circuit court was “a court of competent jurisdiction.” It had exclusive original jurisdiction of the crime charged against Eli Lowery, and of his person upon that charge. The proceedings and judgment of the Orange circuit court against Eli Lowery, after he had interposed his plea of guilty, were not void, therefore, but were merely erroneous. In Church, Hab. Corp. § 372, it is said: “The writ of habeas corpus cannot be used as a writ of error. Mere error in the judgment or proceedings, under and by virtue of which a party is imprisoned, constitutes no ground for the issuance...