State v. Wall, 29579.

• Decision Date: 09 June 1933
• Docket Number: No. 29579.,29579.
• Citation: 249 N.W. 37,189 Minn. 265
• Parties: STATE ex rel. NEWMAN v. WALL, Sheriff.
• Court: Minnesota Supreme Court

249 N.W. 37

189 Minn. 265

STATE ex rel. NEWMAN v. WALL, Sheriff.

No. 29579.

Supreme Court of Minnesota.

June 9, 1933.

Appeal from District Court, Hennepin County; W. C. Leary, Judge.

Habeas corpus proceeding by the State, on the relation of Max J. Newman, against John P. Wall, Sheriff of Hennepin County. From an order discharging the writ, the relator appeals.

Affirmed.

Samuel P. Halpern, of Minneapolis, for appellant.

Harry H. Peterson, Atty. Gen., Ed. J. Goff, Co. Atty., and Arthur Markve and Per M. Larson, Asst. Co. Attys., all of Minneapolis, for respondent.

STONE, Justice.

Habeas corpus, relator appealing from the order of the district court discharging the writ.

Indicted for perjury, relator pleaded guilty June 23, 1932. Thereupon judgment of conviction was entered, sentencing him to confinement in the state prison until thence discharged in due course of law. On the same day, execution of sentence was stayed and relator put on probation for two years. July 19, 1932, an order was entered vacating the stay of execution and order of probation, and relator remitted to the custody of the sheriff.

1. There is complete absence of ground, or semblance of ground, for the writ. Too

plainly to excuse extended discussion, it has been used as an attempted substitute for an appeal, at which there was an abortive attempt. State v. Newman, 188 Minn. ___, 247 N. W. 576. For relator, it is attempted to question the sufficiency of the indictment. The argument is that relator's testimony (quoted in the indictment), upon which the charge was based, is ambiguous and open to an interpretation which would permit a conclusion that the statements were true. At best, the factual basis for that claim is matter of evidence. It rests upon things extraneous to the indictment. It ignores inexcusably the charge in the indictment that the gist of relator's testimony, therein quoted, was "wilfully, knowingly, and corruptly false," and "material to the issues" in the action wherein relator was a witness.

We do not permit a writ of habeas corpus to be used as substitute for writ of error or appeal. It may not be made a cover for collateral attack on a judgment of conviction. State ex rel. Slayton v. Whittier, 108 Minn. 447, 122 N. W. 319; State ex rel. Schulman v. Phillips, 73 Minn. 77, 75 N. W. 1029; State ex rel. Jackson v. McDonald, 112 Minn. 428, 128 N. W. 454; State ex rel. McDonald v. Riley, 116 Minn. 1, 133 N. W. 86; In re Robinson, 73 Fla. 1068, 75 So. 604, 607, L. R. A. 1918B, 1148. In the Riley Case the rule was applied even where the complaint did not state a public offense. The rule was well stated by the Supreme Court of Florida in the Robinson Case. "The inquiry * * * is, not whether there is in the indictment such specific allegations of the details of the charge as would make it good on demurrer or ...