Shaw v. Utecht

• Decision Date: 18 August 1950
• Docket Number: No. 35285,35285
• Citation: 43 N.W.2d 781,232 Minn. 82
• Parties: SHAW v. UTECHT, Warden.
• Court: Minnesota Supreme Court

Page 781

43 N.W.2d 781

232 Minn. 82

SHAW v. UTECHT, Warden.

No. 35285.

Supreme Court of Minnesota.

Aug. 18, 1950.

Syllabus by the Court.

1. Sufficiency of allegations of an information cannot be challenged after judgment in habeas corpus proceedings.

2. Alleged negligence of accused's counsel, properly appointed by the court to represent him, in allowing inadmissible evidence to be received at the trial is not a ground for habeas corpus.

3. Reception of inadmissible evidence does not render a judgment in a criminal case subject to collateral attack in a habeas corpus proceeding. To avail himself of such error, accused should assert objections thereto at the trial and have them reviewed upon appeal or by writ of error. Habeas corpus cannot be invoked for use in correcting mere errors or irregularities of a trial court which are not jurisdictional. It is not a substitute for appeal or writ of error and cannot be used as a writ of review or as means of correcting error in admission of evidence.

4. Where, as here, the error in a sentence is merely in form and not in substance, such irregularity does not render the sentence void or subject it to collateral attack by habeas corpus. Validity of increased punishment because of prior convictions need not be passed upon in quashing petition for writ of habeas corpus where petitioner has served substantially less time than the minimum period of imprisonment required by the sentence imposed under the indeterminate sentence law, irrespective of any increased punishment.

Theodore Harold Shaw, Stillwater, for appellant.

J. A. A. Burnquist, Attorney General, Ralph Stone, Assistant Attorney General, for respondent.

CHRISTIANSON, Justice.

Petitioner appeals from an order denying his petition for a writ of habeas corpus. Respondent moves to quash the petition and dismiss the appeal.

Petitioner was charged by information of the county attorney of Olmsted county with having committed therein the felony of robbery in the first degree on or about September 12, 1936. In addition, contrary to M.S.A. § 610.31, the county attorney accused petitioner in the same information with prior convictions of two felonies previously committed in this state, namely, grand larceny in the second degree and the operation of a motor vehicle without the owner's permission and consent. Petitioner pleaded not guilty to the charge of robbery in the first degree, and on October 5, 1936, after a jury trial in the district court for Olmsted county, the jury rendered its verdict finding petitioner guilty of the crime of robbery in the first degree. The record before us does not show that any plea was made with respect to the prior convictions. Petitioner was sentenced under the indeterminate sentence law, ¹ and the court did not fix a maximum term. He is now confined at the Stillwater state prison.

A certified copy of the transcript of the proceedings before the Olmsted county district court shows that during the trial the records of the two prior convictions were offered in evidence on behalf of the state, and that thereupon one of petitioner's counsel stated: 'The defendant admits the convictions as set forth in the information, both of them, and that the Shaw mentioned in them is the same person alleged to have committed the crime (robbery in the first degree) here.' It also shows that upon the presentence examination by the trial court petitioner admitted the two prior convictions. In his petition, petitioner states that he 'does not complain that he was punished more severely simply through establishment that he was a repeated offender as described by the habitual criminal law.' The sentence ² imposed by the trial court upon petitioner reads as follows:

'It appearing now that you have been convicted of the crime of robbery in the first degree by a verdict of a jury of this county, and it appearing further that you were convicted of the crime of grand larceny in the second degree at Red Wing on the 7th day of February, 1927, and it appears further that you were convicted at the city of Red Wing in the District Court on the 21st day of March, 1931 of operating a car without the owner's permission, now, therefore, it is the judgment of the court that as punishment For those crimes that you be sentenced to such penal institution, to be confined in such institution as may be designated by the State Board of Classifications, ³ until discharged by competent authority or due process of law.' (Italics supplied.)

Petitioner was represented throughout the trial court proceedings by competent counsel appointed by the court. The record before us fully sustains the jury's verdict finding petitioner guilty of the crime of robbery in the first degree. The question of prior convictions was not submitted to the jury.

The petition for a writ of habeas corpus was denied by the district court of Washington county on April 12, 1950. Petitioner appeals from the order of denial, and we now have before us a motion by respondent to quash the petition and dismiss the appeal because (1) the grounds alleged in the petition are not sufficient to justify the issuance of a writ of habeas corpus; and (2) the facts stated in the petition show that petitioner is not entitled to such a writ. Cf. Stolpestad v. Utecht, Minn., 42 N.W.2d 813; State ex rel. Sherin v. Goss, 73 Minn. 126, 75 N.W. 1132. The motion is based upon the petition for the writ, and the certified copies of the information, verdict, minutes of conviction, transcript of the trial court's proceedings, and the warrant of commitment, presented by petitioner to the lower court with his petition and returned to this court upon appeal. The case comes here De novo.

The question before us is whether the petition presents a case entitling petitioner to the issuance of a writ of habeas corpus. From a careful examination of the petition and of the certified copies of the trial court's files and records presented therewith, we find that it does not present such a case.

1. The first allegation of the petition, that the judgment is void because the information did not allege that petitioner used a dangerous weapon in any particularly described fashion, and the fifth allegation, that the information did not clearly allege the manner in which the offense (robbery in the first degree) was committed, question the sufficiency of the allegations of the information with respect to the charge of robbery in the first degree. Sufficiency of the allegations of an information cannot be challenged after judgment in habeas corpus proceedings. ⁴

2. The second allegation attacks the judgment upon the ground that petitioner's counsel were negligent in allowing inadmissible evidence to be received in evidence against him at the trial. Such errors or mistakes of counsel, standing alone, are not a ground for habeas corpus, even if counsel appointed to represent petitioner were negligent in this respect. Diggs v. Welch, 80 U.S.App.D.C. 5, 148 F.2d 667, certiorari denied, 325 U.S. 889, 65 S.Ct. 1576, 89 L.Ed. 2002; Jones v. Huff, 80 U.S.App.D.C. 254, 152 F.2d 14. In Helms v. Humphrey, 63 F.Supp. 4, 5, the federal district court for Minnesota held: 'It is not a ground for habeas corpus that counsel made a mistake or was negligent or gave bad advice to his client. Petitioner was not thereby deprived of assistance of counsel * * * nor of the benefits of the due process clause.'

3. The third and fourth allegations pertain to alleged errors of the trial court in admitting in evidence an affidavit and the records of petitioner's two prior convictions. The certified copy of the transcript of the trial court's proceedings shows that no objections were made to the reception in evidence of either the affidavit or the records of prior convictions, and the trial court had no opportunity to rule upon their admissibility. If petitioner had any objections thereto, he should have asserted them at the trial, and the time to review them was on appeal. State v. Shansy, 164 Minn. 10, 204 N.W. 467; State v. O'Connor, 154 Minn. 45, 191 N.W. 50; State v. Rutledge, 142 Minn. 117, 171 N.W. 275. Here, it affirmatively appears that petitioner admitted the prior convictions alleged in the information when the state offered the records of them in evidence.

Moreover, as this court held in State ex rel. Nordstrom v. Superintendent of Workhouse, 146 Minn. 140, 142, 178 N.W. 610, 'The reception of inadmissible evidence does not render a judgment subject to collateral attack in a habeas corpus proceeding.' Such error is not a ground for habeas corpus. ⁵ 'Habeas corpus is not a corrective remedy, but is concerned only with defects in a proceeding which operate to render a judgment rendered, or process issued, therein absolutely void. It cannot be invoked for use in correcting mere errors or irregularities in the proceedings of a trial court which are not jurisdictional * * *.' (Italics supplied.) 25 Am.Jur., Habeas Corpus, § 28. 'Questions which may or should be decided at the trial or reviewed upon appeal or error have no place in a habeas corpus proceeding, * * *.' 39 C.J.S., Habeas Corpus, § 15, page 449. Habeas corpus is not a substitute for appeal or writ of error. ⁶ Nor can it be used as a writ of review, ⁷ or as a means of correcting error in the admission of evidence. ⁸

4. Petitioner's sixth and last allegation attacks the information with respect to the inclusion therein of the two prior felony convictions. He also attacks the sentence imposed by the trial court upon his conviction of the crime of robbery in the first degree. His contentions, although he does not so allege, seem to be that because his prior convictions were included in the same information charging him with robbery, and particularly because the trial court used the words 'as punishment for those crimes' in its sentence, he was unlawfully charged, tried, convicted, and sentenced for the additional crimes of grand larceny in the second...