State ex rel Anderson v. Jameson

• Decision Date: 11 April 1928
• Docket Number: 6313
• Citation: 219 N.W. 118,52 S.D. 524
• Parties: STATE ex rel ANDERSON, Plaintiff and appellant, v. JAMESON, Defendant and respondent.
• Court: South Dakota Supreme Court

52 S.D. 524

219 N.W. 118

STATE ex rel ANDERSON, Plaintiff and appellant,

v.

JAMESON, Defendant and respondent. South Dakota Supreme Court Appeal from Circuit Court, Minnehaha County, SD Hon. L. L. Fleeger, Judge File No. 6313—On rehearing, modified N. B. Bartlett, E. C. Sigler, Sioux Falls, SD Attorneys for Appellant. Buell F. Jones, Attorney General R. F. Drewry, Assistant Attorney General, Pierre, SD Attorneys for Respondent. Opinion filed April 11, 1928 (See 215 NW 697)

MISER, C.

In the former opinion in this case, reported in 51 SD 540, 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 appellants’ 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.”

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...