State v. Jameson

• Decision Date: 22 October 1927
• Docket Number: 6313.
• Citation: 215 N.W. 697,51 S.D. 540
• Parties: STATE ex rel. ANDERSON v. JAMESON, Warden.
• Court: South Dakota Supreme Court

215 N.W. 697

51 S.D. 540

STATE ex rel. ANDERSON v. JAMESON, Warden.

No. 6313.

Supreme Court of South Dakota

October 22, 1927

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

Application by the State of South Dakota, on the relation of Ruth Anderson, for a writ of habeas corpus to George T. Jameson as warden of the state penitentiary, to secure the release of one Shenkle from defendant's custody. From an order denying the application and remanding the prisoner to custody, relator appeals. Affirmed.

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 appellant's application for a writ of habeas corpus, she states that she is the daughter of one Shenkle, and that she makes her petition for the purpose of securing his release from the warden of the state penitentiary. No reason is given therein why she, and not Shenkle, signed and verified the complaint; nor was any statement made therein that the application was made on his behalf. An examination of the 29 cases of habeas corpus thus far considered by this court or its territorial predecessor discloses no precedent for such procedure. True, section 4978, Rev. Code 1919, provides that such application "shall be in writing and signed by the prisoner or some person on his behalf." But here the prisoner does not sign, nor does appellant on his behalf, nor does the prisoner supply an affidavit in support of the application, nor does appellant offer any excuse for its omission. 29 C. J. 138. Indeed, appellant meets one of respondent's contentions with the assertion that Shenkle is not an actor in this application for a writ of habeas corpus. Respondent had contended that, even though the judgment by which Shenkle is imprisoned be invalid, he is not entitled to his liberty, but, his guilt having been established by a regular verdict, his case should be remanded to the trial court for the entry of a proper judgment. State v. Schaller, 49 S.D. 398, 207 N.W. 161; Ex parte Dunn (S. D.) 208 N.W. 224. To this contention appellant replied that Shenkle had not waived his rights under section 9 of article 6 of the Constitution to not be twice put in jeopardy, because he was not the moving party in these habeas corpus proceedings. If appellant be right in this contention-which we do not decide-has she not thereby discovered a reason for the statutory provision that the application be signed by the prisoner "or some person on his behalf"? The phrase "on his behalf" or "in behalf of" means "on account of; on the part of; in the name of; for." Webster's New International Dictionary. See, also, In re Harry K Thaw, 15 Que. Pr. 47, 48; 13 Dom. L. R. 712; 22 Can. Cr. Cas. 3. That the phrase has this meaning in section 4978 finds support in the language of section 4980. The circuit court of Minnehaha county, to whom the application was addressed, would have been justified in quashing the writ for the reason that there was nothing to show that Shenkle either authorized or desired it. U. S. ex rel. Bryant v. Houston (C. C. A.) 273 F. 915.

Shenkle was convicted of rape in the second degree, the punishment for which, under section 4098, R. C., is "imprisonment in the state penitentiary not exceeding twenty years." He was given an indeterminate sentence of not less than 10 nor more than 20 years. The warden and board of charities and corrections later fixed the term at 10 years. It is conceivable that the trial judge, who, on the day of sentence, was of the belief that the protection of society demanded an imprisonment of not less than 10 years and possibly 15 or 20 years, might now, if the responsibility of fixing the exact punishment were placed upon him, be of the opinion that the sentence should be more than 10 years. With such a possibility, the court to whom the application was addressed might well question the authority of another to apply for the writ, and, upon the hearing, when no affidavit has been filed by the person whose liberty lies on the scales, might well refuse to make the writ absolute. It was not without reason that our statute provides that the application shall be signed by the prisoner or some one on his behalf.

But, even though Shenkle had himself signed the application, has the proper remedy been used to right the error complained of? Appellant contends herein that section 4966, being our Indeterminate Sentence Law, gave to the trial judge no right to fix the limits "of not less than ten nor more than twenty years" in the sentence. This court has many times stated that the writ of habeas corpus cannot be substituted for the writ of error. State v. Pratt, 20 S.D. 440, 107 N.W. 538, 11 Ann. Cas. 1049; In re Taylor, 7 S. D. 382, 64 N.W. 253, 45 L. R. A. 136, 58 Am. St. Rep. 843; Richards v. Matteson, 8 S. D. 77, 65 N.W. 428; Ex parte Nesson, 25 S.D. 330, 126 N.W. 594; State ex rel. Haff v. Schlachter, 21 S.D. 276, 111 N.W. 566; Ex parte Dunn (S. D.) 208 N.W. 224. See, also, Knewel, Sheriff, v. Egan, 268 U.S. 442, 45 S.Ct. 522, 69 L.Ed. 1036; and In re Bonner, 151 U.S. 242, 14 S.Ct. 323, 38 L.Ed. 149. In the note to State v. Pratt, supra, 11 Ann. Cas. 1055, it is said:

"It is the rule that where a court has jurisdiction of the person and of the offense, and errs merely in regard to the punishment imposed, relief will not be granted by habeas corpus. The remedy in such case is by writ of error."

Furthermore, our statute leaves little ground for speculation. In section 4980 it is said:

"If it appears that the applicant is in custody by virtue of process from any court legally constituted, he can be discharged only for one or more of the following causes: 1. When the court has exceeded the limit of its jurisdiction, either as to the matter, place, sum or person."

Then six other reasons are specified, none of which are urged by appellant herein. Then comes a paragraph which begins thus:

"No court or judge, on the return of a writ of habeas corpus, shall in any other manner inquire into the legality or justice of a judgment or decree of a court legally constituted."

The writ of habeas corpus, which has for centuries been esteemed the best and only sufficient defense of personal freedom, has for its object the speedy release by judicial decree of persons illegally restrained of their liberty. 12 R. C. L. 1179; Ferris, Extraordinary Legal Remedies, § 4, p. 23. It is not a mere corrective remedy and is not to be employed as a writ of quo warranto, nor as a writ of certiorari, nor permitted to perform the functions of an appeal. "Proceedings on habeas corpus to obtain release from custody under final judgment being in the nature of a collateral attack, the writ deals only with such radical defects as render the proceeding or judgment absolutely void." 12 R. C. L. 1192.

In the case at bar, the circuit court of Beadle county had unquestioned jurisdiction of the person and the offense. For this offense it had jurisdiction to imprison in the state penitentiary for not exceeding 20 years. Upon a conviction, the validity of which is not questioned, it sentenced the prisoner to the state penitentiary for not less than 10 nor more than 20 years. Because the court fixed a minimum of 10 years when the statute fixes no minimum, appellant contends that the judgment is void and the prisoner is entitled to his liberty. Appellant is not without authority to support this contention; but-

"The majority of the decisions, and especially those more in consonance with reason and justice, are averse to the discharge of criminals who have been duly convicted when the application for their release is by petition for habeas corpus based on some error, omission or mistake in the judgment or sentence which might have been cured or corrected by writ of error or appeal." 12 R. C. L. 1207.

This court, in State v. Schaller, supra, quotes with approval from In re Bonner, supra, as follows:

"The common law embodies in itself sufficient reason and common sense to reject the

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