Younger v. Hehn

• Decision Date: 18 February 1904
• Citation: 75 P. 443,12 Wyo. 289
• Parties: YOUNGER v. HEHN, WARDEN OF THE PENITENTIARY
• Court: Wyoming Supreme Court

75 P. 443

12 Wyo. 289

YOUNGER v. HEHN, WARDEN OF THE PENITENTIARY

Supreme Court of Wyoming

February 18, 1904

HABEAS CORPUS. Ed Younger having been convicted of the crime of grand larceny at the October term of the District Court sitting in the County of Big Horn, and sentenced to imprisonment in the State Penitentiary for the term of three and one-half years, filed his petition for the writ of habeas corpus, alleging that by such imprisonment he was unlawfully restrained of his liberty. The matter was heard upon the petition and return of the respondent to the writ. The facts are stated in the opinion.

E. E Enterline, for the plaintiff.

The constitutionality of a statute may be inquired into in a habeas corpus proceeding by a person who is under imprisonment by virtue of such statute. (Church on Habeas Corpus, Sec. 370; Ex parte Rosenblatt, 19 Nev. 439; Ex parte Smith, 135 Mo. 223; 64 Kan. 842; Ex parte Neet, 157 Mo. 527 57 S.W. 1025; In re Wright, 3 Wyo., 478; In re Boulter, 5 Wyo., 329.)

Where a court exceeds its authority or has no authority to render judgment, the petitioner is entitled to be discharged from imprisonment under such judgment; and in a habeas corpus proceeding the court may inquire into the authority of the court to render the particular judgment. (In re Dill, 32 Kan. 668; In re Brown (Kan.), 64 P 76; Church on Habeas Corpus, Sec. 371; People v Liscomb, 60 N.Y. 559; In re Patzwald (Okla.), 50 P. 139; In re Wright, 3 Wyo., 478; Miskimmins v. Shaver, 8 Wyo., 392; Ex parte Dela (Nev.), 60 P. 217.)

The courts have a right to and should go back of the enrolled act to the journal of the House to see whether the constitutional provisions which require certain matters to be entered of record in the journal have been complied with, and if not, it is the duty of the court to declare the act unconstitutional. (State v. Swan, 7 Wyo., 166; Cohn v. Kingsley (Idaho), 49 P. 985; Durfee v. Harper (Mont.), 56 P. 583; In re Convention, 14 R. I., 649; State v. McBride, 4 Mo., 303; State v. Mason, 43 La. Ann., 590; Collier v. Frierson, 24 Ala. 100; Answer of the Judges, 6 Cush., 573; Paving Co. v. Hilton, 69 Cal. 479; Koehler v. Hill, 60 Ia. 543; Russie v. Brazzell, 128 Mo. 93; Miller v. Johnson, 92 Ky. 589; Cooley Const. Lim., 44; James. Const. Conv., Sec. 564 et seq.; State v. Tufly, 19 Nev. 391.)

If the journals are silent upon any matter required to be entered, the evidence is conclusive that the step required to be taken and entered did not take place, as the courts must impute to the record and statements absolute verity. (Paving Co. v. Hilton, 69 Cal. 479; Cohn v. Kingsley (Idaho), 49 P. 985; State v. Swan, 7 Wyo., 166.)

The act fixing two terms of court in Big Horn County being clearly invalid, the District Court was without jurisdiction to try and sentence the petitioner. (In re Millington, 24 Kan. 214; Ex parte Stout, 5 Colo. 509; In re Allison, 13 Colo. 525; In re Patzwald (Okla.), 50 P. 139.)

This court has a right to inquire into the legal existence of the court at the time of trial and sentence, because neither the Judge nor court was acting within their legitimate province and in a lawful manner. (R. S., Sec. 5498.) It is the court that has jurisdiction of the offense and not the Judge. (Church on Habeas Corpus, Sec. 369; Daniels v. Towers, 79 Ga. 785.) A prisoner in custody by virtue of a judgment of a court which had no legal existence at the time that sentence was pronounced will be discharged on habeas corpus. (Church on Habeas Corpus, Sec. 370.)

The same argument as to the invalidity of the law fixing the terms of court apply to the manner of drawing and summoning a jury. The jury could only be drawn and summoned at a regular term of court.

J. A. Van Orsdel, Attorney General, for the respondent.

Irregularities in drawing, summoning and empaneling a trial jury must be taken advantage of by proceedings in error. A challenge to the array during the trial is the proper method of reaching irregularities of this kind. (U. S. v. Gale, 109 U.S. 65; Shaw v. State, 18 Ala. 547; Hatcher v. State, 18 Ga. 460; Barrien v. People, 73 Ill. 256; Miller v. State, 69 Ind. 284; Montgomery v. State, 3 Kan., 263; Hurley v. State, 6 O., 400; Curtis v. Comm., 87 Va. 589; Daniel v. State, 26 Tex. App., 552; Grubb v. State, 14 Wis. 434; State v. Swift, 14 La. Ann., 827; State v. Jackson, 36 La. Ann., 96; Munshower v. State, 56 Md. 514; Comm. v. Smith, 9 Mass., 107; State v. Conway, 23 Minn. 292; Greer v. State, 28 Miss. 687; State v. Boone, 82 N. C., 637.)

"One may waive objections to the collected jury, or to a juror, and so be validly tried by an imperfect panel put upon him." (1 Bish. New Cr. Proc., Sec. 932; Mfg. Co. v. Etheridge, 63 Ga. 568; Gillolley v. State, 58 Ind. 182; Carr v. State, 76 Ga. 592; Pierson v. People, 79 N.Y. 424.)

If, while the grand jury is being made up and sworn for the trial of a defendant, he is aware of a cause for challenge and does not make it, he is too late afterward. (People v. Stonecifer, 6 Cal., 405; Van Blaricum v. People, 16 Ill. 364; State v. Haskell, 6 N. H., 352; Rice v. State, 16 Ind. 198; People v. Scott, 56 Mich. 154.)

In order that a judgment should be recognized as valid, it is, of course, necessary that it should have been rendered by a lawful and duly constituted court; otherwise, it is not the sentence of the law and is not entitled to carry its sanction, but on principles of public policy, and for the security of rights, it is held that the regular judgments of a defacto court whose existence has afterwards been pronounced unconstitutional and void are, nevertheless, valid and conclusive. (State v. Carroll, 38 Conn. 449; State v. Alling, 12 O., 16; Masterson v. Matthews, 60 Ala. 260.)

I will admit that the judgments of a court rendered at a time not authorized by law for the holding of a court are coram non judicia and void, but the judgment in this case was not rendered at a term of court not authorized by statute. In other words, should the court determine that the statute fixing the term of court for Big Horn County, at which the petitioner was tried, is unconstitutional and void, that does not necessarily render the judgment in this case void, for the term of court was held under an existing statute and under color of law. (Smithson v. Dillon, 16 Ind. 169; Coffinberry v. Horrill, 5 Cal., 493; Smith v. Chittendon, 1 Cal., 409; Bowden v. Hatcher, 93 E. Rep., 724; Black on Judgments, Sec. 177; Venerable v. Curd, 2 Head (Tenn.), 582; Claire v. Claire, 4 Greene (Ia.), 411; King v. Greene, 2 Stewart, 133; 68 N. C., 243; New Orleans v. Gautheraux, 32 La. Ann., 1126; Smith v. Chicester, 1 Cal., 409; Passwater v. Edwards, 44 Ind. 343.)

(On the subject of the validity of the statutes for the alleged failure of the journal of the House to show the fact of signing the act by the Speaker, the Attorney General was of opinion that the constitutional requirement in that respect was mandatory; but contended that the journal entry as to the signing of the act relating to the terms of court in the Fourth District amounted to a substantial compliance with the constitutional provision.)

POTTER, JUSTICE. CORN, C. J., and KNIGHT, J., concur.

OPINION

POTTER, JUSTICE.

This is a habeas corpus proceeding instituted in this court by Ed Younger, who alleges that he is unlawfully restrained of his liberty by the Warden of the State Penitentiary at Rawlins, in this State. The writ was issued, and the cause was heard upon the petition and the return of respondent to the writ.

It is admitted that the petitioner is confined in said penitentiary, and that the cause of his restraint is a mittimus issued out of the District Court in and for Big Horn County upon a judgment entered in said court on the 2d day of November, 1901, at a term of said court begun and held in said county on the 21st day of October, 1901, in and by which said judgment the petitioner was sentenced to be confined in the penitentiary for the period of three and one-half years.

It appears by the allegations of the petition, which are admitted by the return to be true, that on October 18, 1901, an information was filed in the office of the Clerk of the District Court in and for Big Horn County, charging the plaintiff, Younger, with the crime of grand larceny; that on October 21, 1901, the Judge of said court convened the same under and pursuant to an act of the Sixth Legislature as amendatory of Section 3299 of the Revised Statutes of 1899, said act having been known in the proceedings of said Legislature as Senate File No. 12, and being Chapter 6 of the Session Laws of 1901; that on said last mentioned date the plaintiff was brought before said court, and an order was made assigning counsel to defend him; that on the following day the plaintiff was again brought before said court and he entered a plea of not guilty to the information aforesaid; that he was thereafter, during said term of court, tried before a jury empaneled from a trial jury drawn and selected as hereinafter stated, and a verdict of guilty was returned by said jury.

It is further alleged and admitted that prior to October 21, 1901, the Judge of said court, by an order entered in vacation, directed a jury to be drawn and summoned by the Sheriff, County Treasurer and the Clerk of said court, under the provisions of an act of said Sixth Legislature, amending Section 3350 of the Revised Statutes of 1899, said act being Chapter 109 of the published laws of 1901, and having been known as House Bill No. 60.

It is further alleged in the petition that said legislative acts under which said term of court was held, and the jury therefor drawn and summoned, are unconstitutional and void and that the said court, in consequence thereof, had no...