Witte v. Dowd

• Decision Date: 20 December 1951
• Docket Number: No. 28718,28718
• Citation: 230 Ind. 485,102 N.E.2d 630
• Parties: WITTE v. DOWD, Warden.
• Court: Indiana Supreme Court

Page 630

102 N.E.2d 630

230 Ind. 485

WITTE v. DOWD, Warden.

No. 28718.

Supreme Court of Indiana.

Dec. 20, 1951.

James C. Cooper and Harold Fiely, Rushville, for appellant.

J. Emmett McManamon, Atty. Gen., George W. Hand, John Ready O'Connor, Deputies, for appellee.

EMMERT, Judge.

This is an appeal from a judgment entered upon an order of the trial court sustaining a motion to quash a writ of habeas corpus.

The complaint for the writ disclosed the following proceedings and judgment had in the Superior Court of LaPorte County on the 28th day of September, 1936, to-wit:

'Comes now the State of Indiana, by Clarence T. Sweeney, Deputy Prosecuting Attorney, and comes also the defendant in his own proper person, and being present in open court, and being arraigned and being required to say how he will acquit himself of the charge made against him in the affidavit filed herein, for plea thereto says that he is guilty as charged, to-wit: Forgery and Habitual Criminal, and the court now finds said defendant guilty as charged.

'The court further finds said defendant's age to be twenty-nine (29) years.

'It is therefore considered, adjudged and decreed by the court that said defendant, for the offense by him committed by sentenced to the Indiana State Prison, for and during the period of his life, from this date.' The record does not contain a copy * * * ¹ of the affidavit or indictment under which appellant was prosecuted, but on review we must consider that such pleading contained a proper charge of forgery and two prior convictions, sentences and imprisonment in some penal institution for felonies pursuant to the requirements of §§ 9-2207, 9-2208, Burns' 1942 Replacement. Crawford v. Lawrence, 1900, 154 Ind. 288, 56 N.E. 673; Goodman v. Daly, 1929, 201 Ind. 332, 165 N.E. 906.

The motion to quash the writ admitted the facts well pleaded in the complaint. Schleuter v. Canatsy, 1897, 148 Ind. 384, 47 N.E. 825; Willis v. Willis, 1905, 165 Ind. 325, 75 N.E. 653. It tested the sufficiency of the complaint the same as a demurrer for want of facts in an ordinary action. McDonald v. Short, 1921, 190 Ind. 338, 130 N.E. 536; Dinkla v. Miles, 1934, 206 Ind. 124, 188 N.E. 577.

'A writ of habeas corpus is an ancient common law remedy for imprisonment without just cause, the origin of which is obscure by reason of its great antiquity. Harold Hulme, 'Our American Heritage: Freedoms Derived from the English Constitution,' Vol. 32, Am.Bar Assn.J. 849, 851; 25 Am.Jur. 144, 145, § 3; 29 C.J. § 1, page 7; 39 C.J.S., Habeas Corpus, § 1, page 426. By virtue of its recognition in the Bill of Rights of the Constitution of Indiana, the privilege of the writ exists independent of the statute and flows from our constitution for the protection of all whose liberty may be restrained under unlawful authority. The common law origin of the writ is recognized in Wright v. State, 1854, 5 Ind. 290, 294, as follows:

"* * * Its great object is the liberation of those who may be imprisoned without just cause, and it has been so favorably regarded in this country, that the provisions of the English act, 31 Charles 2, chap. 2, have been substantially adopted by the several states. We have even gone further, and by the 27th section of the bill of rights in our constitution provided, that 'the privilege of the writ of habeas corpus shall not be suspended, except in case of rebellion or invasion; and then only if the public safety demand it."

'Although the Legislature has made and provided reasonable regulation for its use, §§ 3-1901 to 3-1925, Burns' 1946 Replacement, the writ is not a statutory remedy in a strict sense of the term, but rather a remedy recognized and continued by the Constitution.' State ex rel. Allen v. Fayette Circuit Court, 1948, 226 Ind. 432, 434, 435, 81 N.E.2d 683, 684.

'The right to a writ of habeas corpus is a part of the law of the land * * *' State ex rel. Eggers v. Branaman, 1932, 204 Ind. 238, 247, 183 N.E. 653, 656. This right has been a part of the law of this jurisdiction since the Ordinance of 1787. ² Unfortunately many of the cases have not clearly recognized that the substantive right recognized and continued by the organic law of this state, is a common law right made a constitutional right, and thus beyond the power of the Legislature to impair. ³ As was said by the Court of Appeals of New York in an opinion by Allen, J., 'This writ cannot be abrogated, or its efficiency curtailed, by legislative action. Cases within the relief afforded by it at common law cannot, until the people voluntarily surrender the right to this, the greatest of all writs, by an amendment of the organic law, be placed beyond its reach and remedial action. * * *

'The remedy against illegal imprisonment afforded by this writ, as it was known and used at common law, is placed beyond the pale of legislative discretion, except that it may be suspended when public safety requires, in either of the two emergencies named in the Constitution.' People ex rel. Tweed v. Liscomb, 1875, 60 N.Y. 559, 566, 567, 19 Am.Rep. 211. The statement in State ex rel. Barnes v. Howard, 1946, 224 Ind. 107, 109, 65 N.E.2d 55, 56, that 'Habeas corpus is a statutory proceeding in the State of Indiana', is specifically overruled. If it be purely statutory, the legislature could then abolish the right to the writ. The legislature could enlarge the right, but the Constitution prohibits any impairment of the right. ⁴

It is appellant's contention here that the judgment was void for the reason the trial court failed to pronounce a sentence of imprisonment against appellant for a specific term on the forgery charge as prescribed by § 9-2208, Burns' 1942 Replacement. In determining this question we are not limited to the judgment as it appears in the commitment set forth as an exhibit to the complaint, and properly construed, Clause 2 of § 3-1918, Burns' 1946 Replacement, Acts 1881 (Spec.Sess.), ch. 38, § 790, p. 240, which prohibits an inquiry into the legality of any judgment or process issued on any final judgment of a court of competent jurisdiction, does not and cannot constitutionally prohibit an inquiry into the jurisdiction of the court rendering the sentence as determined by the intrinsic record of that court, and the process issued pursuant thereto. ⁵

In 1854 this court in construing a similar provision of 2 R.S.1852, held, 'This question of jurisdiction the judge had a right to inquire into on the hearing upon habeas corpus, both upon general principles of law, and under our statute. The statute is (2 R.S., p. 195, s. 725) that the judge, on such hearing, when the prisoner is held 'upon any process issued on any final judgment of a Court of competent jurisdiction,' shall not discharge, &c., plainly implying that the question of jurisdiction is open to inquiry.' Miller v. Snyder, 1854, 6 Ind. 1, 3. This same construction was given this provision in Smith v. Clausmeier, 1893, 136 Ind. 105 113, 114, 35 N.E. 904, 906, where the court, in discussing the right and duty of the court in habeas corpus proceedings to determine the jurisdiction of the court whose orders or judgments are attacked, said:

'In relation to the statutory provision (R.S.1881, § 1119) prohibiting any court or judge from inquiring into the legality of any judgment or process whereby the party is in custody, or from discharging him when the term of commitment has not expired, in certain named cases, one being when he is held 'upon any process issued on any final judgment of a court of competent jurisdiction,' it has been well said by Mr. Church in his work on Habeas Corpus, (2d Ed. § 81:) 'We apprehend that the true construction of such a statute leaves the question of jurisdiction always open. To bar the applicant from a discharge by means of habeas corpus, the court in which the judgment was rendered, or from which the process was issued, must have had jurisdiction to render such judgment. The tribunal must be competent to render the judgment under some circumstances. The prohibition forbidding the inquiry by a court or judge into the legality of any previous judgment or process does not, and cannot, without nullifying to some extent the general principles governing the issuance of the writ of habeas corpus, take from the court or judge the power, or relieve him from the duty, of determining whether the judgment or process emanated from a court of competent jurisdiction, and whether the court rendering the judgment or issuing the process had the legal and constitutional power to render such judgment, or send forth such process. It simply prohibits the review of a decision of 'a court of competent jurisdiction.' * * * Where it appears that the relator is detained under the process or under the final judgment of a court of competent jurisdiction, it is the duty of the court to remand him, unless it is shown that the process issued, or that the judgment was rendered, without jurisdiction; and this the relator may always show, notwithstanding the statutory prohibition.'' ⁶

'A writ of habeas corpus raises the question of the jurisdiction of the court over the persons and over the subject-matter, and also his jurisdiction to enter the particular judgment which he does enter.' Kabanya v. Fogarty, 1923, 193 Ind. 297, 301, 139 N.E. 449, 450. ⁷ In view of the many confusing statements about the nature and extent of jurisdiction, we feel the reasoning of Mr. Justice Field in Re Bonner, 1894, 151 U.S. 242, 256, 257, 14 S.Ct. 323, 325, 38 L.Ed. 149, 151, is particularly pertinent. He wrote, 'There has been a great deal said and written, in many cases with embarrassing looseness of expression, as to the jurisdiction of the courts in criminal cases. From a somewhat extended examination of the authorities, we will venture to state some rule applicable to all of them, by which the jurisdiction, as to any particular judgment of the court, in such cases, may be determined. It is plain that such cou...