Sennott v. Swan

• Decision Date: 06 April 1888
• Citation: 146 Mass. 489,16 N.E. 448
• Parties: SENNOTT v. SWAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

146 Mass. 489

16 N.E. 448

SENNOTT v. SWAN.

Supreme Judicial Court of Massachusetts, Suffolk.

April 6, 1888

COUNSEL

Thomas F. Gallagher, for petitioner.

The authority of police courts to try and sentence, without previous indictment of a grand jury, boys charged with felonies, is a special statutory power, and every step which the statute requires must be strictly observed; and in all such cases every circumstance required by the statute to give jurisdiction must appear in the record of the proceedings. A record is a memorial or history of a case, commencing with the writ or complaint, and ending with the judgment. A record, therefore, must contain proof within itself of every important fact upon which the judgment rests. Sayles v Briggs, 4 Metc. 421; Kendall v. Powers, Id 553, 555. There is in this case no record of the issuing of a summons to the father. Such summons is an indispensable prerequisite to the jurisdiction of the court. Until its return the court has no power to examine the case, or pronounce judgment thereon. Fitzgerald v. Com., 5 Allen, 509; Pub.St. c. 89, § 20. Nor does it appear of record that the boy was tried before the police court at a session for the trial of juvenile offenders (Pub.St. c. 89, § 19;) or that notice of the pendency of the complaint was given to the board of lunacy and charity, (Acts 1883, c. 110;) or that any request was made to the court by said board to commit said boy to their care, (Pub.St. c. 89, § 22;) or that the court adjudicated upon his age; or that he was present in court when sentence was imposed upon him. The court lost jurisdiction over the boy by its order of July 12th that the case stand "continued to August 9th for sentence." This order was without legal authority, and void, and the proceedings thereafter were coram non judice. Pub.St. c. 212,§ 26. The commitment was therefore without authority, and the prisoner is entitled to be discharged upon habeas corpus, without reversal of the judgment, ( Herrick v. Smith, 1 Gray, 50;) likewise, where the mittimus is irregular, and unauthorized by law, (Adams v. Vose, 1 Gray, 51.) The mittimus in this case was irregular and erroneous. It directed that the boy be delivered into the custody of the board of health, lunacy, and charity, which does not authorize his imprisonment by said board. It authorized the board to place the boy in the Lyman school, whereas, under the statute, this cannot be done unless he shall prove unmanageable. Pub.St. c. 89, § 22. The age of a juvenile offender must appear in the warrant of commitment. Pub.St. c. 89, § 24. The court exceeded its authority. The judgment, therefore, was void, the commitment illegal, and the boy may be discharged. Jones v. Robbins, 8 Gray, 330.

H.C. Bless, Asst. Atty. Gen., for the Commonwealth.

The court had jurisdiction of the person and the offense. Only jurisdictional defects will be investigated on habeas corpus. Church, Hab.Corp. § 363. Since the enactment of Pub.St. c. 187, § 13, a writ of error has become a complete and adequate remedy for the correction of errors like that herein charged. At most, the error was one of judgment and proceedings in a court that had jurisdiction, and the case falls under the rule in Com. v. McLaughlin, 122 Mass. 449; Feeley's Case, 12 Cush. 599; Ross' Case, 2 Pick. 172; Fleming's Case, 12 Allen, 194, and cases cited; Jones v. Robbins, 8 Gray, 330; Ex parte Siebold, 100 U.S. 373. The court in question had jurisdiction to render an appropriate judgment and sentence (if this were not) upon the prisoner in any of the characters, conditions, or relations shown in the record. See People v. Liscomb, 60 N.Y. 559. This is substantially a judgment appropriate to the offense. A habeas corpus is not designed to operate for the correction of an error which may be remedied by a writ of error, appeal, or certiorari. Thus, in Ex parte Farnham, 3 Colo. 545, a verdict was received during the enforced absence of the defendant. Held a proper subject for a writ of error, but not of habeas corpus. Omissions in the record, as omissions to state the offense of which the prisoner was convicted, does not render the judgment void, provided it shows that the defendant was indicted for some offense, and tried and convicted, and the sentence passed upon him was one which the court had jurisdiction to pronounce for an offense of which he might have been convicted under the indictment. Ex parte Gibson, 31 Cal. 619. There is a presumption of regularity in matters not disclosed by the records. People v. Cavanagh, 2 Park.Crim.R. 650. Pub.St. c. 89, § 20, is only directory, and does not render a proceeding or sentence void when said requirements are not observed. Fanning v. Com., 120 Mass. 388. The case is not within Fitzgerald v. Com., 5 Allen, 509. Where, through error, a wrong institution is designated as a place of confinement, as a jail instead of a penitentiary, it cannot be reviewed on habeas corpus. People v. Cavanagh, supra; Ex parte Bond, 9 S.C. 80; Crandall's Case, 34 Wis. 177; Semler's Case, 41 Wis. 517; Ex parte Shaw, 7 Ohio St. 81. "It is an error that may be remedied by a further order or entry," or by supplying a proper mittimus; and the case is within the rule laid down in People v. Nevins, 1 Hill, 154; People v. Baker, 89 N.Y. 460; Sheriff of Middlesex's Case, 11 Adol. & E. 273.

OPINION

KNOWLTON J.

This is a writ of habeas corpus to the superintendent of the Lyman school for boys at Westborough, issued by the superior court upon a petition alleging that the petitioner's minor son, Mark Sennott, aged 14 years, was unlawfully imprisoned and restrained of his liberty by said superintendent. It appeared at the hearing that this boy was held under the authority of a mittimus issued upon a judgment of the police court of Fitchburgh, and the record of the case was introduced. The petitioner contends that the police court had no jurisdiction, that its proceedings were irregular, and that its judgment was void, because it appears by the record that the case was disposed of contrary to the laws in relation to the trial of juvenile offenders. He also contends that the mittimus was irregular and illegal, and that therefore the boy should be discharged from imprisonment.

The record shows that Mark Sennott was brought before the court to answer to a complaint in due form, charging him with breaking and entering a building with intent to commit the crime of larceny therein, and with stealing two revolvers in said building. He was between seven and seventeen years of age. Upon these facts there can be no doubt that the court had jurisdiction of his person, and of the offense with which he was charged. Pub.St. c. 89, §§ 18-24; St.1883, c. 110; St.1884, c. 323; Id. c. 255, § 11. The record is not full enough to certainly show whether or not there was any irregularity in the proceedings prior to the imposition of sentence; but, so far as appears, every requirement of the law was complied with. The final judgment was that he was guilty, and that he should "be committed to the state board, to be sent to the Lyman school." If there was in the sentence or the prior proceedings any irregularity affecting the validity of the judgment, it can be corrected upon a writ or error. But neither irregularities nor errors, so far as they were within the jurisdiction of the court, can be inquired into upon a writ of habeas corpus. Clarke's Case, 12 Cush. 320; Herrick v. Smith, 1 Gray, 50; Adams v. Vose, Id. 51; Ex parte Watkins, 3 Pet. 193; Ex parte Siebold, 100 U.S. 373; In re Underwood, 30 Mich. 502; Platt v. Harrison, 6 Iowa, 79.

That a writ of habeas corpus cannot perform the functions of a writ of error, in relation to proceedings of a court within its jurisdiction, is universally agreed. The only conflict of authority touching the subject is in regard to what acts are open to inquiry upon the question of jurisdiction. It is held in this state, and by good authorities elsewhere, that the constitutionality of a law which a court is attempting to apply, lies at the foundation of the jurisdiction under it and may be called in question upon habeas corpus. Herrick v. Smith, 1 Gray, 49; Ex parte Siebold, 100 U.S. 371; People v. Roff, 3 Park.Crim.R. 216. But this doctrine has been contradicted, and action founded upon an unconstitutional law held a mistake, which can only be corrected upon a writ of error. In re Harris, 47 Mo. 164. So there has been diversity of opinion among different courts as to sentences which are not authorized by law. The better rule seems to be that, where a court has jurisdiction of the person and of the offense, the imposition, by mistake, of a sentence in excess of what the law permits, is within the jurisdiction, and does not render the sentence void, but only voidable by proceedings upon a writ of error. Ross' Case, 2 Pick. 165; Feeley's Case, 12 Cush. 599; Semler's Case, 41 Wis. 517; Ex parte Shaw, 7 Ohio St. 81; Ex parte Van Hagan, 25 Ohio, St. 426; In re Phinney, 32 Me. 440; Kirby v. State, 62 Ala. 51; Lark v. State, 55 Ga. 435. It has sometimes been held that such a sentence is legal so far as it is within the provisions of law, and void as to the excess. People v. Jacobs, 66 N.Y. 8; People v. Baker, 89 N.Y. 460; Bigelow v. Forrest, 9 Wall. 339. The leading cases of Ex parte Lange, 18 Wall. 163, and People v. Liscomb, 60 N.Y. 559, do not decide that a sentence which is merely erroneous and excessive, through a mistake of law, is void in such a sense as to make an officer liable for executing it, or to call for a discharge upon habeas corpus of a person held under it. Indeed, in the former case, Mr. Justice MILLER, in his opinion, at page 174, asserts that it is not. The principle upon which this case goes is that when a court has once imposed a...