Ryan v. Nygaard
| Decision Date | 28 April 1941 |
| Docket Number | Cr. 179 |
| Court | North Dakota Supreme Court |
[Copyrighted Material Omitted]
Syllabus by the Court.
1. On habeas corpus the inquiry is limited to questions of jurisdiction. The writ of habeas corpus cannot be used as a substitute for appeal or writ of error to obtain a review of the correctness of the acts of a court that was acting within its jurisdiction.
2. Jurisdiction is the power to hear and determine. The existence of such power does not depend upon the correctness of the decision made; for a court, having jurisdiction of a cause and of the parties and general power to render the particular order or judgment that is challenged, does not lose jurisdiction because it makes a mistake in determining either the facts or the law, or both.
3. A court having jurisdiction of the offense charged, and of the party who is charged with its commission has jurisdiction to determine whether that offense is sufficiently charged in the indictment or information.
4. Chapter 126, Laws 1927, which provides for increased punishment for persons convicted of a felony in this State who have been convicted of two or more felonies in this or any other State in the United States, construed, and it is held :
(a) That an information may be filed thereunder " if at any time before judgment and sentence, or at any time after judgment and sentence but before such judgment and sentence is fully executed, it shall appear that one convicted of a felony, has been previously convicted" of two or more felonies that fall within the purview of said Chapter.
(b) That prosecution may be instituted and conducted under said Chapter only after a conviction for a felony. It is not contemplated that the fact of the former convictions shall be set forth in the information charging the commission of the crime for which the increased punishment is sought to be invoked.
(c) The procedure prescribed by said Chapter 126 is precisely the same where a person previously has been convicted of two felonies and it is sought to subject him to the increased punishment prescribed by Section 1 of the said Chapter, as where a person has been convicted three or more times of felonies and it is sought to subject him to the increased punishment prescribed by Section 2 of said Chapter.
5. A District Court has jurisdiction of a prosecution under said Chapter 126, Laws 1927, after a conviction for a felony, (1) either before judgment and sentence, or (2) at any time after judgment and sentence, but before the judgment and sentence is fully executed.
6. Where an information under said Chapter 126 is presented after judgment and sentence, but before judgment and sentence is fully executed, it is a question for the court to determine whether the information is sufficient, and the court has jurisdiction to determine the questions of law and fact that may arise in the course of the action.
7. For reasons stated in the opinion, it is held that the record affirmatively discloses that the petitioner was not deprived of any legal right, either statutory or constitutional, but that he was afforded a fair trial according to the law of the land and that he is legally detained in custody by virtue of a final judgment of a competent court of criminal jurisdiction.
Original habeas corpus proceeding by Thomas Ryan against O. J Nygaard, as Warden of the North Dakota State Penitentiary, to secure petitioner's discharge.
Writ denied.
Thomas Ryan, pro se.
Milton K. Higgins, Assistant Attorney General, and B. A. Dickinson, Assistant State's Attorney, for respondent.
Christianson, J. Morris, Burke, and Nuessle8 JJ., concur. Burr, Ch. J.
CHRISTIANSON
Thomas Ryan has petitioned this court for a writ of habeas corpus. It appears from the petition that he is incarcerated in the state's penitentiary, in Burleigh county, and that the district court of Burleigh county has denied an application for habeas corpus.
The petition recites that the petitioner is illegally restrained of his liberty and confined in the state's penitentiary by virtue of an "illegal" final judgment rendered by the district court of Ward county on October 9th, 1939. In accordance with the usual practice adopted by this court in such cases, the court issued an order to show cause addressed to the warden of the state's penitentiary. (Walker v. Johnston, U.S. , 85 L. ed. (Adv. 517), 61 S.Ct. 574.) That officer filed a return. From the petition and return the following facts appear:
On September 2d, 1939, an information was filed in the district court of Ward county charging the petitioner with the crime of "attempted burglary by use of nitroglycerin."
The information charged that on August 31st, 1939, within said Ward county, "the said Thomas Ryan did wilfully, unlawfully and feloniously break into and enter a building, to wit, the Minot Steam Laundry Building in Minot, Ward county, North Dakota, and attempt to commit a crime therein by the use of nitroglycerin."
On October 4th, 1939, another information was filed in the district court of Ward county charging the petitioner with having committed the crime of unlawful possession of nitroglycerin within Ward county on July 31st, 1939.
Counsel was appointed by the court for the defendant in the criminal action charging him with the crime of attempted burglary, and he was represented by counsel in such action. The court informed the petitioner that he was entitled to counsel in the action, charging him with the unlawful possession of nitroglycerin, but the petitioner stated that he did not desire to have counsel appointed in such action and that he desired to enter a plea of guilty.
On October 4th, 1939, the defendant entered a plea of guilty to the crime of unlawful possession of nitroglycerin, and he also entered a plea of guilty to the crime of burglary in the third degree in the criminal action in which he was charged with attempted burglary.
The court thereupon sentenced the petitioner as follows: In the criminal action in which the defendant had entered a plea of guilty of burglary in the third degree, he was sentenced to imprisonment in the state's penitentiary for a term of five years; and in the criminal action in which he had entered a plea of guilty to the crime of unlawful possession of nitroglycerin, he was sentenced to imprisonment in the state's penitentiary for a term of two years, the judgment of conviction, providing that this sentence should "run consecutively with the sentence of five years this day imposed for the crime of burglary in the third degree."
There is attached to the return of the respondent, copies of the informations, and judgments of conviction; and, also, a transcript of the proceedings had at the time the petitioner was sentenced in both of said criminal actions. From statements made by the petitioner to the court at that time, it appeared that the petitioner had been convicted two times of felonies in the state of Washington. In 1929 he was convicted of burglary and sentenced to a term of imprisonment of from five to fifteen years; and in February, 1935, he was convicted of grand larceny and sentenced to serve a term of from three to ten years.
After the district court of Ward county had pronounced sentences in the two cases, the court directed the state's attorney to file an information against the petitioner under the so-called "habitual criminal" statute. Laws 1927, chap. 126. Thereafter the state's attorney filed such information, and on October 9th, 1939, the petitioner was duly arraigned thereon. He was informed by the court of his right to counsel, but stated that he was ready to enter a plea. He thereupon entered a plea of guilty and the trial court rendered judgment vacating the sentence and judgment that had been pronounced against the petitioner on October 4th, 1939, on the charge of burglary in the third degree (to a term of five years in the penitentiary), and adjudged that the petitioner be sentenced to the state's penitentiary for a term of eight years, such sentence to "run concurrently with the judgment and sentence entered on October 4th, 1939, sentencing the defendant to a term of two years in the penitentiary on a charge of possession of nitroglycerin."
Ward county is in the fifth judicial district. There are two judges in such district. In October, 1939, they were Hon. John C. Lowe and Hon. A. J. Gronna. Judge Lowe presided in the district court of Ward county on October 4th, 1939, and he pronounced the sentences on the petitioner imposed on that day, and he directed the filing of information against the petitioner under chapter 126, Laws 1927. Judge Gronna presided in the district court of Ward county on October 9th, 1939, and all proceedings had on that day, including the filing of the information and the pronouncement of sentence and the rendition of judgment of conviction, were had before him.
Chapter 126, Laws 1927, under which the petitioner was sentenced on October 9th, 1939, provides:
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