Tullis v. Shaw
| Decision Date | 16 January 1908 |
| Docket Number | 21,123 |
| Citation | 83 N.E. 376,169 Ind. 662 |
| Parties | Tullis v. Shaw |
| Court | Indiana Supreme Court |
From Superior Court of Marion County (74,344); John L. McMaster Judge.
Habeas corpus by Edgar Tullis against Augustus D. Shaw. From a judgment for defendant, plaintiff appeals.
Affirmed.
Averill & Collins, for appellant.
James Bingham, Attorney-General; Alexander G. Cavins, Henry M Dowling and Edward M. White, for the appellee.
This is a proceeding by writ of habeas corpus against the superintendent of the Marion county workhouse for the discharge of appellant from said institution. On motion of appellee said writ was quashed and final judgment rendered against appellant remanding him to the custody of said superintendent.
It appears from the application for said writ that appellant was on August 15, 1907, arrested and brought before the Juvenile Court of Marion County upon an affidavit charging that appellant within Marion county, State of Indiana, "did on or about August 15, 1907, cause and encourage one [naming her], a girl under the age of fifteen years, to commit an act of delinquency, as defined in the statute in such case made and provided in this, to wit, that he, said Edgar Tullis, held illicit sexual intercourse with said [naming her], that he also aimed to assist said [naming her] to make her escape from the Indiana Girls' School, of which institution she is an inmate," etc. Said affidavit was signed and sworn to August 15, 1907.
Appellant was arraigned upon said charge, and entered a plea of not guilty. Said cause was tried by the court, and on August 26, 1907, the court found appellant guilty, and sentenced him to pay a fine in the sum of $ 500 and to be imprisoned in the Marion county workhouse for 180 days. Judgment was rendered upon the finding. Appellant is restrained and imprisoned by virtue of said judgment, and the commitment issued thereon.
It is alleged in said application "that the Juvenile Court of Marion County is a court of limited jurisdiction, and has by law no jurisdiction of the subject-matter of the offense charged in the affidavit, for which reason said judgment was and is absolutely void."
It is provided in section two of the act of 1905 (Acts 1905, p. 440), as amended by the act of 1907 (Acts 1907, p. 266, § 1648 Burns 1908) that
It is insisted by appellant that said affidavit charged him with the commission of a felony under that part of section 361 of the as amended by the act of 1907 (Acts 1907, p. 85, § 2250 Burns 1908), which reads as follows: "Whoever unlawfully has carnal knowledge, * * * of a female child under sixteen years of age * * * is guilty of rape, and on conviction shall be imprisoned in the state prison not less than two years nor more than twenty-one years;" that as the Juvenile Court of Marion County has under said act of 1907 only the power of an examining magistrate, to examine into said charge of felony and either to recognize him to appear at the next term of the criminal court of said county or discharge him, said court in trying said case upon its merits and assessing the punishment therefor was without jurisdiction, and said judgment was void.
This proceeding by habeas corpus is a collateral attack on said judgment, and cannot succeed unless said judgment is absolutely void, because said writ cannot be used for the correction of errors, no matter how gross the errors. McLaughlin v. Etchison (1891), 127 Ind. 474, 476, 22 Am. St. 658, 27 N.E. 152, and cases cited; Turner v. Conkey (1892), 132 Ind. 248, 252-254, 17 L. R. A. 509, 31 N.E. 777; Pritchett v. Cox (1900), 154 Ind. 108, 113, 56 N.E. 20; Webber v. Harding (1900), 155 Ind. 408, 413, 58 N.E. 533; Peters v. Koepke (1901), 156 Ind. 35, 38-40, 59 N.E. 33; Koepke v. Hill (1901), 157 Ind. 172, 174-178, 87 Am. St. 161, 60 N.E. 1039, and cases cited; Lee v. McClelland (1901), 157 Ind. 84, 89, 90, 60 N.E. 692; Williams v. Hert (1901), 157 Ind. 211, 87 Am. St. 203, 60 N.E. 1067; Gillespie v. Rump (1904), 163 Ind. 457, 462-469, 72 N.E. 138, and cases cited; Cruthers v. Bray (1903), 159 Ind. 685, 65 N.E. 517; § 1133 Burns 1901, § 1119 R. S. 1881.
It will be observed that under section two of the act of 1905 (Acts 1905, p. 440), as amended by the act of 1907 (Acts 1907, p. 266, § 1648 Burns 1908), any person who causes or encourages any boy under the full age of sixteen years or any girl under the full age of seventeen years to commit any act of delinquency, as defined in section one of said act (Acts 1905, p. 440, § 1641 Burns 1908), or who violates any provision of section two of said act as amended in 1907, is guilty of a misdemeanor and may be tried and convicted of such offense in said juvenile court, from which judgment an appeal may be taken to the appellate court.
The affidavit in this case in the Juvenile Court of Marion County purported to charge appellant with a misdemeanor in causing and encouraging a girl under the age of seventeen years to commit an act of delinquency, as defined in said §§ 1641, 1648, supra.
It is evident that said affidavit did not attempt to charge appellant with the crime of rape on a child under sixteen years, the age of consent, for the reason that the allegation concerning her age is in connection with that part of the affidavit which purports to charge appellant with a misdemeanor--that is, causing and encouraging her to commit an act of delinquency as defined by §§ 1641, 1648, supra. Said sections are for the protection of girls "under the full age of seventeen years." The allegation in that connection, that she was under the age of fifteen years, was, in effect and substance, that she was "under the full age of seventeen years." If she was under said age of seventeen, what her age really was, or how much it was under seventeen years was immaterial. State v. Newton (1876), 44 Iowa 45, 47; State v. Fetterly (1903), 33 Wash. 599, 602, 74 P. 810; People v. Gardner (1893), 98 Cal. 127, 32 P. 880; Inman v. State (1898), 65 Ark. 508, 47 S.W. 558.
In criminal as in civil cases, only the substance of the issue or charge need be proved. 4 Elliott, Evidence, § 2714; 1 Greenleaf, Evidence (Lewis's ed.), §§ 56-73; 3 Greenleaf, Evidence (Lewis's ed.), § 23; Underhill, Crim. Ev., § 31; 1 Roscoe, Crim. Ev. (8th Am. ed.), *87; Indianapolis St. R. Co. v. Marschke (1906), 166 Ind. 490, 496, 77 N.E. 945. As the substance of the issue, as to the age of said girl, was that she was under the full age of seventeen years, said affidavit must be treated the same as if it alleged that she was under said age of seventeen instead of under the age of fifteen. When so read, it cannot be claimed under the rules of pleading that it charged appellant with the crime of rape on a girl under sixteen years of age, and it is clear that it did not charge him with rape on a woman sixteen years of age or over.
Moreover, it will be noted that what is alleged concerning appellant's having illicit sexual intercourse with said girl is laid under a videlicet, "to wit." The rules applicable to what is alleged under a videlicet have been the subject of much discussion by the courts.
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