State v. Floyd

• Decision Date: 30 September 1911
• Citation: 22 N.D. 183,132 N.W. 662
• Parties: STATE v. FLOYD.
• Court: North Dakota Supreme Court

22 N.D. 183

132 N.W. 662

STATE

v.FLOYD.

Supreme Court of North Dakota.

Sept. 30, 1911.

Syllabus by the Court.

The writ of habeas corpus can be properly used only where the petitioner is confined without jurisdiction.

It cannot be invoked as a means of correcting mere errors or irregularities, or as a substitute for an appeal or writ of error.

Where a defendant was regularly informed against and on trial, and the jury came into court after the issues were submitted to them, and announced that they could not agree upon a verdict, and were discharged, as alleged, in the defendant's enforced absence in jail, and without his consent or the presence or consent of his counsel, held:

(1) Conceding, without deciding, that the discharge of the jury was erroneous, the court was not thereby dispossessed of jurisdiction.

(2) That the action of the court in discharging the jury was, at most, an error, which cannot be reviewed, except in the usual manner, and not by habeas corpus.

(3) If the action of the district court was erroneous, its action can only be reviewed on another trial by pleading former jeopardy in the manner provided by statute.

Application by M. E. Floyd for a writ of habeas corpus. Writ quashed.T. F. McCue, for petitioner. The Attorney General, for the State.

MORGAN, C. J.

Petition for a writ of habeas corpus based upon the following facts, as shown by the petition and the sheriff's return to the writ: Petitioner was regularly informed against for the crime of robbery, and placed on trial before the district court of Foster county. The issue of guilt was submitted to the jury, and after considering the evidence they came into court and announced that they were unable to agree upon a verdict. Thereupon the court discharged the jury from further consideration of the case. The petitioner was not present in court at the time of the discharge of the jury. His absence was an enforced one; he being at the time confined in the county jail. His counsel was not present in court at the time, and neither the petitioner nor his counsel in any way consented to the discharge of the jury. It is also set forth in the petition that an application was made for a writ of habeas corpus to the district court, and denied. These are the facts set forth and relied on by the petitioner in his application for the writ in this court. The sheriff of Foster county, having custody of the petitioner, files a return, wherein he denies that the jury was wrongfully discharged, and denies that the petitioner's confinement is unlawful, or without legal authority. In disposing of the writ, we will deem it shown, for the purposes of this proceeding only, that the jury was wrongfully discharged in the petitioner's enforced absence, although the sheriff denies that such discharge was irregular and erroneous.

[1][2] It is elementary law that in habeas corpus proceedings jurisdictional questions only are reviewable or to be considered. The writ cannot be invoked for the purpose of reviewing the acts of courts or officers, where they acted within their jurisdiction, nor for the purpose of correcting irregularities or errors, or as a substitute for an appeal or writ of error. Before the writ is available as a means of release from confinement, it must appear that the court issuing the process, or the officer or person who keeps the applicant in confinement, has acted entirely without jurisdiction. Our statute particularly lays down the grounds on which the writ will issue, and the substance of the statute is embodied in the statement given above. Section 10,482, R. S. 1905.

It appears from the record before us that the petitioner was before the district court on trial under an information charging him with the crime of robbery, and that said court had jurisdiction of that offense, and of the person of the petitioner. The trial had not been concluded when the jury was discharged, and no final judgment or order had been entered in the case. The order under which he was committed to jail after his arraignment under the information was still in force. That order will continue in force until the district court orders his release from custody after verdict, or dismissal of the case, or other causes, unless the petitioner becomes entitled to release by virtue of failure to bring him to trial regularly, as provided by law, or for some other cause happening after his commitment, rendering his detention unlawful.

[3] In this case it is not contended by the petitioner that the jury was wrongfully discharged by reason of the fact that the jury was discharged before sufficient time had elapsed for a due consideration of the verdict. The sole contention is that the jury was discharged without his knowledge or consent, while he was in jail. We do not decide, in this case, whether the discharge of the jury under the circumstances was erroneous or not. It is not necessary to say more than that the order discharging the jury was not made without jurisdiction. If merely made erroneously, it cannot be attacked collaterally by habeas corpus. The error, if any, must be reviewed...