McBain v. Holowell

• Decision Date: 19 October 1926
• Docket Number: 37620
• Citation: 210 N.W. 461,202 Iowa 391
• Parties: EARL MCBAIN, Appellant, v. T. P. HOLLOWELL, Warden, Appellee. EDSLE HANNER, Appellant, v. T. P. HOLLOWELL, Warden, Appellee
• Court: Iowa Supreme Court

210 N.W. 461

202 Iowa 391

EARL MCBAIN, Appellant, v. T. P. HOLLOWELL, Warden, Appellee.

EDSLE HANNER, Appellant, v. T. P. HOLLOWELL, Warden, Appellee

No. 37620

Supreme Court of Iowa, Des Moines

October 19, 1926

Appeal from Lee District Court.--JOHN M. RANKIN, Judge.

Action in habeas corpus, resulting in a judgment holding that neither of the plaintiffs was entitled to his discharge, and the writs of habeas corpus were quashed. Each appeals.

Affirmed.

Healy & Breen, for appellants.

W. A Cook, County Attorney, and R. N. Johnson, Deputy County Attorney, for appellee.

ALBERT J. DE GRAFF, C. J., and EVANS and MORLING, JJ., concur.

OPINION

ALBERT, J.

The respective plaintiffs in these two cases, Earl McBain and Edsle Hanner, instituted separate proceedings in habeas corpus against the warden of the penitentiary at Ft. Madison alleging their illegal confinement by said warden and praying their discharge. The cases being identical, they were submitted together, and will be covered by one opinion.

On the 10th day of January, 1917, in the Black Hawk County district court, there was filed against the defendants the following county attorney's information:

"Comes now E. J. Wenner, as county attorney of Black Hawk County, state of Iowa, and in the name and by the authority of the state of Iowa accuses Leslie Hanner, Edsle Hanner, and Earl McBain of the crime of murder in the first degree, committed as follows: The said Leslie Hanner, Edsle Hanner, and Earl McBain, on or about the 28th day of December, A. D. 1916, did, while in an attempt to perpetrate a felony, to wit, robbery in and upon the body of one Tony Gunanas, then and there willfully, feloniously, deliberately, premeditatedly, and of their malice aforethought did commit an assault with a deadly weapon, being a pistol, then and there held in the hands of the said Leslie Hanner, and loaded and charged with powder and bullet, and then and there the said Leslie Hanner did, while in attempting to perpetrate said felony, to wit, robbery with the specific intent to kill and murder the said Tony Gunanas, willfully, feloniously, deliberately, and premeditatedly, and of his malice aforethought, shoot off and discharge the contents of the said deadly weapon, being the powder and bullet aforesaid, at, against, and into the heart and body of the said Tony Gunanas, thereby willfully, feloniously, deliberately, premeditatedly, and of their malice aforethought inflicted upon the heart and body of the said Tony Gunanas a mortal wound, of which mortal wound the said Tony Gunanas then and there did die. Contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Iowa."

On the 11th day of January following, the three defendants named in the information appeared in open court with their attorneys, and the record stated that:

"They are informed against by their right names, waive formal arraignment, and, after being fully advised as to the character of the charge against them, plead that they are guilty of the crime of murder, as charged in the information, waive time for sentence, and ask that sentence be now pronounced."

The court proceeded to take the evidence, determined the degree of the crime of which the defendants had pleaded guilty, and found "all of the defendants guilty of the crime of murder in the first degree;" and, after the statutory steps had been followed, judgment was entered, and part of it is as follows:

"It is therefore ordered and adjudged by the court that the defendants, Leslie Hanner, Edsle Hanner, and Earl McBain, be committed to the penitentiary of the state of Iowa, at Ft. Madison, Iowa, at hard labor for the term of their natural lives, and that they pay the costs of this prosecution."

The appellants succinctly state the single question before the court in the following language:

"If the Black Hawk district court had jurisdiction of the offense of murder against these appellants, this appeal must be dismissed; or, if the Black Hawk district court did not have jurisdiction of the offense of murder against these appellants, the judgment imposing life imprisonment is a nullity."

Stated in another way, the contention is that, under this county attorney's information hereinbefore set out, there is no charge of murder against either of these appellants, but that it expressly negatives the charge that these appellants are guilty of the crime of murder. If we assume at this point that the information is defective and unskillfully drawn, this is not enough, in a habeas corpus proceeding, to entitle the appellants to the relief demanded. As clear a statement of the rule as we have been able to find is in In re Robinson, 73 Fla. 1068 (75 So. 604), where it is said:

"Where habeas corpus is invoked to obtain the discharge of a person held in custody to answer a charge of crime, it must be shown that the statute under which the charge is made is invalid, or that the charge as made is not merely defective in its allegations, but wholly fails to state any offense under the laws of the state. The writ of habeas corpus cannot be used as a substitute for a motion to quash or a writ of error or an appeal" (citing authorities).

The same rule is stated, in effect, by the Montana court in In re Farrell, 36 Mont. 254 (92 P. 785), where it is said:

"* * * if an information states facts which do not constitute any crime known to the law, or undertakes to state such an offense, and the facts stated do not constitute the offense, and no addition to them, however full and complete, can supply what is essential, then the court is without jurisdiction to put the complainant on trial. In such case the judgment cannot be corrected. It is simply void. Imprisonment under execution thereon is illegal, and the complainant is entitled to his release, even though he might secure the same relief on appeal."

An elaborate discussion of these theories will be found in L.R.A. 1918B, notes commencing on page 1156.

The line of demarcation seems to be between the question of a defective indictment and no indictment. The question, therefore, before us is whether or not the indictment under consideration shall be considered as a defective indictment, from which, by adding certain allegations to those already made, a good indictment could be had; or whether, in fact, if we take all that is said, it amounts to no indictment. Before we discuss this question, it may be well to turn our attention to some other questions at the threshold of this matter.

By Chapter 227, Acts of the Thirty-third General Assembly, in 1909, the statute with relation to indictments...