State ex rel. Cook v. Howard

• Citation: 64 N.E.2d 25,223 Ind. 694
• Decision Date: 13 December 1945
• Docket Number: 28134.
• Parties: STATE et rel. COOK v. HOWARD.
• Court: Supreme Court of Indiana

64 N.E.2d 25

223 Ind. 694

STATE et rel. COOK v. HOWARD.

No. 28134.

Supreme Court of Indiana

December 13, 1945

Appeal from LaPorte Circuit Court; Lee L. Osborn Judge.

Lawrence E. Cook, of Michigan City, in pro. per., for appellant.

James A. Emmert, Atty. Gen., Frank E. Coughlin, 1st Asst. Atty Gen., and Karl J. Stipher, Deputy Atty. Gen., for appellee.

GILKISON Judge.

Appellant filed his verified complaint for habeas corpus in two paragraphs in the court below on April 6, 1945. After examining the petition, the court denied it, from which action the appeal is taken.

The errors assigned are (1) that the court erred in denying paragraph one of the complaint and (2) the court erred in denying paragraph two of the complaint.

When an action for habeas corpus is filed, the judge shall proceed, in a summary way, to hear and determine the cause. § 3-1917, Burns' 1933. While the writ of habeas corpus is a 'writ of liberty', yet when it appears that the detention complained of is by virtue of a proper process of a court, the writ will not be granted unless the proceeding or judgment supporting the process is absolutely void. McDonald v. Short, Supt., 1921, 190 Ind. 338, 343, 130 N.E. 536; Willis v. Bayles, 1885 105 Ind. 363, 368, 5 N.E. 8, 11.

In Willis v. Bayles, supra, it is said: 'It is settled law that the writ of habeas corpus cannot be used as a writ for the correction of mere errors in the judgment under and by force of which the petitioner for the writ is restrained of his liberty. 'An imprisonment under a judgment,' said Chief Justice Marshall, 'cannot be unlawful unless that judgment be an absolute nullity, and it is not a nullity if the court has general jurisdiction of the subject, although it should be erroneous.' Ex parte Watkins, 3 Pet. 193 . In such case the petitioner for the writ assails collaterally the judgment under which he is imprisoned; and it is clear that, to entitle himself to a discharge from such imprisonment, he must show the judgment, either by his petition or his proof on the hearing, to be an absolute nullity.'

In the instant case each paragraph of appellant's verified complaint conclusively shows that he is imprisoned on a valid commitment issued on a lawful judgment of the Jennings Circuit Court, of July 23, 1931. There is no contention that the judgment was void at that time. If nothing further were shown in the petition undoubtedly the action of the LaPorte Circuit Court in denying the petition was correct, since it is without jurisdiction to revise a valid judgment of a court of equal jurisdiction.

But in the first paragraph of his complaint appellant further alleges, that thereafter, within thirty days from the date of this judgment, he filed a motion for new trial, which was overruled. That he was then too poor to raise the necessary funds to appeal his case. But that he prepared notices of appeal, a praecipe for a transcript of the record, an assignment of error and a motion to appeal as a poor person, within six months after his motion for new trial was overruled, but was prevented by the prison warden and prison employees from mailing or otherwise sending out these appeal papers.

On these facts appellant's first paragraph of complaint alleges:

'11. That by reason of said action of and by Indiana in preventing relator from appealing said judgment Indiana elected to and did nullify said judgment and left relator free to seek relief therefrom in this court in habeas corpus instead of by appeal to said Supreme Court or other appropriate proceedings in said trail court.

'12. That by reason of said foregoing acts of Indiana, by and through members of the Executive Branch thereof, in suppressing, frustrating, and preventing relator in his efforts to perfect said appeal to the Supreme Court of Indiana relator has been and now is deprived of the 'equal protection' of the law and his said imprisonment is in violation of said Fourteenth Amendment and said Section 12.'

It is appellant's contention that this position is supported by State ex rel. Eggers v. Branaman, 1932, 204 Ind. 238, 183 N.E. 653, and Cochran v. State of Kansas, 1942, 316 U.S. 255, 62 S.Ct. 1068, 86 L.Ed. 1453. The Eggers case was an original action brought in this court to mandate the defendant judge of the Lawrence Circuit Court to correct his record so that it would speak the truth in a judgment rendered against the plaintiff in a certain case therein in which she had been sentenced to the Women's Prison for a term of one year. When so corrected the judgment showed on its face that it was a nullity. The proof was such that the mandate was granted and the record was so corrected. When so corrected, the judgment was vulnerable to attack by habeas corpus proceedings, but it could not be so attacked until the correction was made. This case does not support appellant's position, but is consistent with the general rule that a judgment valid on its face may not be collaterally attacked by a habeas corpus proceeding.

The case of Cochran v. State of Kansas, supra, was decided by the United States Supreme Court on May 11, 1942. In that case the petitioner was convicted of passing a $12.60 check, knowing it was forged. After finding that he had been previously convicted of two other felonies the court sentenced him to life imprisonment as a habitual criminal. Thereafter he filed an application for habeas corpus in the Kansas Supreme Court in which, among other things, he alleged that officials of the prison where he was incarcerated, enforcing prison rules, had suppressed appeal documents he had prepared making it impossible for him to perfect his appeal within the time provided by law. The writ was denied by the Kansas Supreme Court. The United States Supreme Court reversed the judgment of that court and remanded the cause for further proceedings,...