State ex rel. Anderson v. Jameson

• Decision Date: 11 April 1928
• Docket Number: No. 6313.,6313.
• Citation: 219 N.W. 118,52 S.D. 524
• Parties: STATE ex rel. ANDERSON v. JAMESON, Warden of Penitentiary.
• Court: South Dakota Supreme Court

52 S.D. 524

219 N.W. 118

STATE ex rel. ANDERSON

v.JAMESON, Warden of Penitentiary.

No. 6313.

Supreme Court of South Dakota.

April 11, 1928.

Appeal from Circuit Court, Minnehaha County; L. L. Fleeger, Judge.

On rehearing.Former opinion modified.

For former opinion, see215 N. W. 697.N. B. Bartlett and E. C. Sigler, both of Sioux Falls, for appellant.

Buell F. Jones, Atty. Gen., and R. F. Drewry, Asst. Atty. Gen., for respondent.

MISER, C.

In the former opinion in this case, reported in 215 N. W. 697, the court held, upon the authorities therein cited, that the writ of habeas corpus cannot be substituted for the writ of error; that a prisoner whose guilt has been established by a regular verdict should not escape punishment altogether because the court, in passing sentence, erred merely in regard to the punishment imposed; that, while the law affords such prisoner a remedy if the judgment be erroneous, and he seeks to have it corrected, his remedy is not by habeas corpus; and that, in such an instance and in a proper proceeding, the case of such a prisoner should be remanded to the trial court for the entry of a proper judgment.Having so held, the court could not do otherwise than affirm the order of the circuit court dismissing the writ of habeas corpus and remanding the prisoner to the custody of the defendant warden of the penitentiary.It was unnecessary to consider the other points presented by the appeal.In order, however, that the confusion as to the meaning of section 4966,Rev. Code 1919, relating to the Indeterminate Sentence Law might thereby be removed, the court construed that section of the statute.On a rehearing at appellant's request, no sufficient reason was presented for further considering the former opinion as to those portions of it above referred to.

In the former opinion, however, we said:

“Appellant also questions the authority of the trial court to make use of the Indeterminate Sentence Law in sentencing this prisoner; the claim being that he is not one to whom its provisions are applicable.This objection could only be raised by the state or by the person so sentenced, neither of whom have raised it.”

[1] In stating that “the person so sentenced” had not, in the habeas corpus proceeding, questioned the use of the Indeterminate Sentence Law in sentencing the prisoner, we now believe we erred.Whether or not the petition for the writ of habeas corpus was such as contemplated by section 4978, the writ in fact was awarded, the prisoner was brought into court, and was there in person, participating in said proceedings without dissent.As appellant says in her petition for rehearing:

“No greater confirmation to a proceeding could be given than the prisoner sitting in court permitting such proceedings to be had.”

Until the filing of appellant's petition for rehearing, we were not advised that this was appellant's position in this matter.In the first paragraph of our former opinion, we alluded to certain contentions presented by appellant's brief.The language of appellant to which we alluded was as follows:

“The question that now confronts this court is, assuming the judgment entered void-which it is-the prisoner having served forty-two...