Oswald v. Martin

• Decision Date: 02 October 1950
• Docket Number: No. 5394,5394
• Parties: OSWALD v. MARTIN.
• Court: Arizona Supreme Court

Page 632

222 P.2d 632

70 Ariz. 392

OSWALD v. MARTIN.

No. 5394.

Supreme Court of Arizona.

Decided Oct. 2, 1950.

Herbert Mallamo, of Phoenix, for petitioner.

Bryce H. Wilson, County Attorney, and John L. Donahue, Jr., Deputy County Attorney, of Tucson, for respondent.

UDALL, Justice.

Petitioner Ernest A. Oswald made an original application to this court for a writ of habeas corpus alleging that he was unlawfully restrained of his liberty by the respondent who was holding him in the Pima County jail. The writ was issued directed to Sheriff Jerome P. Martin of Pima County, who produced the body of petitioner before us on the date appointed, together with his response to the writ, appended to which was a certified copy of the complete record in the criminal case of State of Arizona v. Oswald, including the commitment under which he was being held.

We granted oral argument and being then fully advised in the premises made a minute order (one justice dissenting) quashing the writ of habeas corpus and remanding the petitioner to the respondent for the serving of the sentence imposed. It was stated that the written decision required by the Constitution of Arizona, Art. 6, Sec. 2, would follow in due course. We now formally state our reasons for quashing the writ.

It appears from the record before us that petitioner was charged in Justice Court Precinct No. 1 of Pima County on four misdemeanor counts. He was arraigned, pleaded not guilty, and after a jury trial was convicted on two counts, which included the crime of reckless driving under Sec. 66-403, ACA 1939. For this offense he was sentenced to pay a $100 fine and serve 15 days in the county jail. An appeal was taken to the superior court where the case was tried de novo before the court sitting with a jury, which resulted again in conviction on the reckless driving charge. Following a denial of his motion for a new trial and in arrest of judgment, the court imposed sentence of a fine of $150 and 20 days in the county jail. Petitioner has no remedy by appeal from this judgment. Sec. 44-2507, ACA 1939, State v. Guthrie, 66 Ariz. 41, 182 P.2d 109, and cases cited therein.

Petitioner alleged generally as the basis for his application for this ancient writ that he was being deprived of his liberty without due process of law and in violation of the equal protection clauses of both the federal and state constitutions. Specifically, he asserted that the court had committed fundamental error, depriving him of a substantial right, in failing to follow the mandatory provisions of the constitution and statutes of this State with reference to the charging of a jury orally without a court reporter being present to take down, and if necessary, later transcribe said instructions, or else having said instructions written out beforehand, signed by the court and filed with the clerk.

The following constitutional and statutory provisions are claimed by petitioner to be controlling in this matter:

Art. 6, Sec. 12 of the Constitution of Arizona in part provides: 'Judges shall not charge juries with respect to matters of fact nor comment thereon, but shall declare the law.'

Art. 6, Sec. 22 of the same document provides further: 'The pleadings and proceedings in criminal causes in the courts shall be as provided by law.'

Sec. 44-1808, ACA 1939, states in part: '6. The judge may then charge the jury and must do so on any points pertinent to the issue, if requested by either party; and he shall declare the law. If the charge be not given in writing, it must be taken down by the court reporter.'

Sec. 44-1840, ACA 1939, provides further:

'(1) The court shall instruct the jury regarding the law applicable to the facts of the cause.

'(2) The charge of the court may be either oral or written, but if oral it shall be taken by a court reporter.'

Sec. 44-1811, ACA 1939, provides: 'The law of evidence, and of instructions and oath to jury, in civil actions shall also apply to criminal actions, except as otherwise provided in this Code.'

Great reliance is placed upon the following two early decisions of this court, viz.: Territory v. Kennedy, 1 Ariz. 505, 25 P. 517, and Territory v. Duffield, 1 Ariz. 58, 25 P. 476, interpreting and construing similar statutory provisions relative to the manner of giving instructions to juries in felony cases.

The respondent points out that these decisions were rendered long prior to the adoption of our State Constitution and under somewhat different statutes and urges that the pronouncements there made are not now controlling. Basically, however, the provisions as to the manner of giving and preserving instructions to a jury in felony cases remain the same, though there are now other statutes and legal principles hereinafter cited, that have a material bearing on the problem presented in this habeas corpus matter that there was no occasion to consider in the early Arizona cases heretofore cited.

From the Kennedy case, supra [1 Ariz. 505, 25 P. 517], we quote the following excerpt upon which petitioner relies: 'The provision (as to manner of giving and preserving instructions) is a most important one to a party charged with crime. It enables him, upon a motion for a new trial or upon appeal, to reproduce the exact language of the charge, and to assign error, if the charge is legally objectionable, with a degree of precision and accuracy impossible to be attained when the charge is given verbally. Nothing is left to the recollection of the court or the counsel in the cause. If rigid adherence to this provision of our statute should defeat the ends of justice in any particular case, it is to be regretted; but, however this may be, the rights which it secures to a defendant in a criminal action may not be denied him. The filing with the papers in the case of a written charge conforming as nearly as possible, according to the recollection of the judge, to the charge verbally given, is in no sense a compliance with the law. Exactness, certainty, entire and complete accuracy, as to the whole charge, is what the law aims at, and this in the interest of the accused; and it seems to us that this certainty cannot be so well attained in any other manner as by reading the charge to the jury, and we have no doubt that this is what the law requires to be done.'

In the Duffield case, supra, this court stated: 'The defendant in a criminal case has an undoubted right to have every word uttered by the judge to the jury written at large in the record, and a failure to do so when required, touching the charge to the jury, as the law directs, is error.' [1 Ariz. 58, 25 P. 477.]

There is a vast distinction between the principles announced in the cases just quoted from and the questions raised in the present proceedings. Habeas corpus was not there involved. Both of those early cases were appeals from felony convictions and both were reversed for errors held to have denied the defendants procedural due process. Here, there being no appeal from the judgment and sentence imposed upon defendant, it is conceded that the only possible prejudice resulting to him because the instructions were not written was that he was unable thereafter to review them and specifically point out to the trial court the errors, if any, in said instructions upon presentation of his motions in arrest of judgment and for a new trial. It is not alleged that the instructions were in fact erroneous but only that they were given orally and not taken down by a court reporter.

Habeas corpus cannot be used as means of reviewing errors and irregularities which do not effect the jurisdiction of the court. Ex parte Wilson, 140 U.S. 575, 11 S.Ct. 870, 35 L.Ed. 513; Ex parte Smith, 4 Ariz. 95, 78 P. 1035; Ex parte Silvas, 16 Ariz. 41, 140 P. 988; Crowley v. Gannon, 21 Ariz. 234, 186 P. 1117; State v. Grantham, 30 Ariz. 591, 249 P. 758; State v. Henderson, 34 Ariz. 430, 272 P. 97; Smith v. Warren, 52 Ariz. 237, 80 P.2d 394; In re Harrison, 55 Ariz. 347, 101 P.2d 457. See also 25 Am.Jur., Habeas Corpus, Sec. 28.

Petitioner has failed to recognize that 'lack of due process' and 'lack of jurisdiction' are not necessarily synonymous terms. As is stated in Wells v. Pridgen, 154 Ga. 397, 114 S.E. 355, 356: '[D]enial of due process of law, though erroneous, must be such as to deprive the court of jurisdiction, in order to authorize habeas corpus.'

In 25 Am.Jur., Habeas Corpus, Sec. 55, in outlining the use of this writ, it is said: 'The sole question involved is that of jurisdiction * * * that is, the question as to whether the court had jurisdiction of the person of the petitioner and of the subject matter, and according to the prevailing view, power to render the particular judgment.' See also 39 C.J.S., Habeas Corpus, §§ 15 and 16, Ex parte Solway, 82 Mont. 89, 265 P. 21; Hiatt v. Brown, 339 U.S. 103, 70 S.Ct. 495, 94 L.Ed. ----.

The Supreme Court of Oklahoma in the case of Ex parte Long, 26 Okl.Cr. 259, 223 P. 710, 711, stated:

'It is undoubtedly the law that upon habeas corpus cognizance can be taken only of defects of a...