Reichert v. Turner

• Decision Date: 11 April 1932
• Docket Number: Cr. No. 91.
• Citation: 62 N.D. 152,242 N.W. 308
• Parties: REICHERT v. TURNER, Warden.
• Court: North Dakota Supreme Court

62 N.D. 152

242 N.W. 308

REICHERT

v.TURNER, Warden.

Cr. No. 91.

Supreme Court of North Dakota.

April 11, 1932.

Syllabus by the Court.

1. On habeas corpus the inquiry is limited to questions of jurisdiction. The writ cannot be invoked for the purpose of reviewing the correctness of the rulings of a court that was acting within its jurisdiction.

2. “Jurisdiction” is the power to hear and determine. The existence of the power does not depend upon the correctness of the decision made; and a court having jurisdiction of a cause and of the parties does not lose jurisdiction because it makes a mistake in determining either the facts or the law, or both.

3. Whether a criminal information contains sufficient allegations of the crime purported to be charged therein is a question for determination by the trial court, and where the crime charged is one within the jurisdiction of that court, the court does not lose jurisdiction because it sustains an information which fails to charge with sufficient certainty and fullness some particular fact involved in the crime purported to be charged.

4. Where a person seeks to be released from imprisonment by writ of habeas corpus on the ground that the judgment of conviction is void because the information in the case did not state facts sufficient to constitutea public offense, the inquiry is not whether the information contains such specific allegations of detail as would make it good on demurrer; but the inquiry is whether the court had power to hear and determine a criminal case involving the crime named, and purported to be set forth, in the information.

Habeas corpus proceeding by Andrew J. Reichert against Claude C. Turner, as Warden of the State Penitentiary.

Application for writ denied.

F. E. McCurdy, of Bismarck, for petitioner.

James Morris, Atty. Gen., and Chas. Simon, Asst. Atty. Gen., and H. L. Malloy, of Halliday, for respondent.

CHRISTIANSON, C. J.

Andrew J. Reichert has petitioned this court for a writ of habeas corpus. It appears from the petition that an application for such writ was made to one of the judges of the district court of Burleigh county and that such application was denied. It further appears from the petition that on October 28, 1925, an information was filed in the district court of Dunn county charging the petitioner Reichert with the crime of attempt to commit murder in the first degree; that said petitioner Reichert entered a plea of guilty, and was thereupon sentenced to imprisonment in the state's penitentiary for a term of twenty years.

Petitioner predicates his right to the writ solely on the ground that the information filed against him on October 28, 1925, and to which he entered a plea of guilty, did not state facts sufficient to constitute a public offense, and it is asserted that, consequently, his plea of guilty did not give the court authority to impose sentence. There is no contention on behalf of the petitioner that the proceedings had in the court below were not in other respects wholly regular. It is conceded that an information in due form was filed; that said information in words charged the petitioner with the crime of attempt to commit murder in the first degree; that such information was duly verified and filed as prescribed by law and as regards form complied literally with the statutes and constitutional provisions relating to criminal informations. The sole attack upon the information is directed at the sufficiency of the statement of facts. The information charged in substance that said Reichert, on October 26, 1925, was the owner and in possession of and operating a certain automobile upon the highways of said Dunn county; that at said time and place and at the request of said Andrew J. Reichert, and by his direction, his wife, Mrs. Andrew J. Reichert, and his minor child, Adeline Reichert, were in said automobile; and that said Andrew J. Reichert then and there willfully, unlawfully, and feloniously and with premeditated design to effect the death of another, and with intent then and there to kill a human being, to wit, Mrs. Andrew J. Reichert, and her said minor child, Adeline Reichert, did remove from one of the front wheels of said automobile a pin or stay bolt; that said automobile was thereafter started from Dunn county to Killdeer with said human beings therein; that when said automobile, operated as aforesaid, reached the top or brow of a certain hill in the brakes in said Dunn county, N. D., in which said automobile the said Mrs. Andrew J. Reichert and Adeline Reichert were riding, said automobile was to be stopped by the driver thereof under the pretext that something had gone wrong with the car and that the same needed to be adjusted or repaired, and in the adjustment or repairing of said car the burr was to be removed from the wheel from which the stay bolt had been taken, and the car in which said human beings were riding was to be pushed or permitted to roll backward and over the incline and down an embankment with the intent and premeditated design that said automobile would tip over and kill the said Mrs. Andrew J. Reichert and said Adeline Reichert.

Our laws provide:

“An act done with intent to commit a crime and tending but failing to effect its commission, is an attempt to commit that crime. Any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was perpetrated by such person in pursuance of such attempt, unless the court, in its discretion, discharges the jury and directs such person to be prosecuted for such crime.” Section 10337, C. L. 1913.

“Every person who attempts to commit any crime, and in such attempt does any act toward the commission of such crime but fails, or is prevented or intercepted in the perpetration thereof, is punishable, when no provision is made by law for the punishment of such attempt, as follows: 1. If the offense so attempted is punishable by imprisonment in the penitentiary for four years or more, or by imprisonment in a county jail, the person guilty of such attempt is punishable by imprisonment in the penitentiary or in a county jail, as the case may be, for a term not exceeding one-half the longest term of imprisonment prescribed upon a conviction for the offense so attempted. * * *” Section 10338, C. L. 1913.

Under these statutory provisions an attempt to commit a crime has two essential elements: (1) The intent to commit some specific crime; and (2) the performance of some act tending to effect its commission. It is the contention of the petitioner here that the information to which he entered a plea of guilty, and under which he was sentenced to imprisonment, fails to show that he committed any act tending to effect the commission of the crime of murder in the first degree or any other crime and that, hence, the judgment of conviction is a nullity and the petitioner entitled to be released by writ of habeas corpus.

The information in this case in clear and specific language charges the felonious intent and premeditated design on the part of the petitioner to effect the death of his wife and daughter. It further charges that he took some steps, that is, performed some acts, looking toward the consummation of his felonious intent. It charges not only that he removed the stay bolt from one of the front wheels, but that his said wife and child were in the automobile, at his request and by his direction, and that the automobile was started on what the petitioner had planned should be a fatal trip for his wife and daughter. It is not a case therefore where the facts stated in the information are inconsistent with the guilt of the accused and have a tendency to show that he was not in fact guilty of the offense of which he stands convicted.

The question when a person, who has an intent to commit a crime, and accordingly plans and prepares for its commission, passes beyond the point of planning and preparation and enters upon the execution of the criminal project, is frequently one of much difficulty.

“It is impossible to formulate a rule which will constitute an unerring guide in assigning to cases which occupy the debatable ground their respective places upon one side or the other of the line which separates preparation from legal attempt. The question must, from its very nature, always remain difficult of solution. The wisest course for tribunals to pursue with respect to it is to deal with each cause as it arises, in the light of a few general principles applicable to such cases.” Cornwell v. Association, 6 N. D. 201-203, 69 N. W. 191, 192, 40 L. R. A. 437, 66 Am. St. Rep. 601.

The authorities are by no means agreed as to when an act is merely an incident in preparation and planning and when it passes beyond that point and can be said to be an overt act tending to effect the commission of the crime that had been planned. Under the holdings of some of the courts the acts which the information in this case charges that the defendant had committed would constitute overt acts tending to effect the commission of murder in the first degree. Under the holdings of other courts the acts might be said to constitute only incidents in preparation and planning and not overt acts tending to effect the commission of the crime which had been planned.

Reports of the adjudicated cases disclose that the question, whether an act is an overt act tending to effect the commission of the crime or merely an incident in planning and preparation, has generally been raised by objections to the sufficiency of the evidence to sustain the conviction. In every case the question was raised in the trial court and came before the appellate court on some appropriate proceeding for review of errors claimed to have been committed in the court below. No case has been called to our attention, and we have been able to find none, wherein it has been sought to have such question reviewed on habeas corpus. And we are all...