Hunnicutt v. Frauhiger

Willoughby, J. This was a petition for a writ of habeas corpus in which it is alleged that the appellant is unlawfully restrained of his liberty and is imprisoned by Noah Frauhiger duly elected and qualified and acting sheriff of Wells county, at the Wells county jail, in the city of Bluff ton, Indiana. That the pretended cause of this restraint and imprisonment is that a certain pretended commitment was issued against the body of this petitioner commanding his arrest and imprisonment by one John H. Edris, as special judge of the city court of Bluff ton, Indiana, upon failure of petitioner to pay a certain fine and costs assessed in the case of the State of Indiana v. William Hunnieutt, charging a violation of the liquor laws of the State of Indiana; which cause and pretense are wholly untrue, and that such restraint was illegal because there was no valid judgment against the *504 petitioner upon which an execution against his body could be legally charged. That said judgment was void for the reason that said city court was wholly without jurisdiction. That said John H. Edris, special judge, had no authority to issue such commitment against the body of this petitioner. That the pretended judgment rendered in the case of the State v. William Hunnicutt, aforesaid, was a fine of $100 and costs, and imprisonment in the. Indiana state prison for a period of not less than one year nor more than two years. The return to the writ is as follows: Comes now Noah Frauhiger, the defendant and the person to whom the said writ of habeas corpus was directed, and says: that he is now and was at the time said writ was issued the sheriff of Wells county, State of Indiana, and ex officio the keeper of the jail of said Wells county, and for his answer and return thereof, upon his oath says that the said William Hunnicutt was, on September 27,1924, arrested by virtue of a warrant issued from the court of the mayor of the city of Bluffton, Indiana, charging him' with a violation of the liquor laws of the State of Indiana. That said affidavit .was based upon ch. 23, of the acts of 1923. That the defendant, William Hunnicutt, entered a plea of guilty of transporting intoxicating liquor as charged in the first count of the affidavit. That at all stages of said hearing in said court before the said John H. Edris as special judge, the said William Hunnicutt was represented by an attorney. That said William Hunnicutt was adjudged guilty upon his said plea and he was fined in the sum of $100 and also sentenced to the Indiana state prison for a period of not less than one year nor more than two years. That the part of the said judgment assessing a sentence to the Indiana state prison was suspended by the court. That no appeal from said judgment was taken by the petitioner and that said judgment has never been appealed and has never *505 been reversed and is in full force and effect to this date. That the said William Hunnieutt has failed to pay said fine and costs so assessed and that the same remain due and wholly unpaid to this day. That on June 6, 1925, the said John H. Edris, special judge aforesaid, issued a commitment to Henry Gehrett, the' marshal of the city of Bluffton, Indiana, commanding - the said Henry Gehrett, as said city marshal, to apprehend the said William Hunnieutt, and to deliver said Hunnieutt to the custody of this defendant as the jailer of Wells county, Indiana, then and there to be confined in the jail of said county, for 130 days,for the failure of said Hunnieutt to pay the said fine and costs so assessed against him by said court. That said Hunnieutt was taken into the custody of said Henry Gehrett, the city marshal, by virtue of said writ of commitment, and that said Hunnicutt was then and there délivered into the custody of this defendant as the jailer of said- Wells county, Indiana; that said William Hunnieutt is now in the custody of this defendant by virtue of said writ, and in no othér way, and that a copy of said writ of commitment is filed herewith and made a part hereof. And thé defendant prays the court that said petition for said writ of habeas corpus be .quashed. And that said William Hunnieutt be continued in the custody of this defendant for the space of time set forth in said writ of commitment and that this defendant be awarded his costs herein expended and for all other proper relief .in these premises. The plaintiff filed exceptions to this return as follows: The undersigned, the plaintiff in the above entitled cause, herewith files his exceptions to the return of the writ of habeas corpus by the defendant, Noah Frauhiger, and hereby excepts to said return and says that said return is not a defense to the plaintiff’s complaint herein; in this: That it shows that the judgment rendered in the case of the State of Indiana v. William Hunnicutt, *506 was rendered in the city court of Bluff ton, Indiana; that said court is one of limited jurisdiction and has no jurisdiction to pass sentence in a criminal case and to render judgment therein to exceed six months imprisonment, nor has it any jurisdiction whatever in cases where the penalty exceeds imprisonment for six months. That the fact that the said William Hunnicutt was represented by an attorney and that such attorney was present when said judgment was pronounced by the court, and the said defendant, William Hunnicutt, at that time made and filed no objections against said judgment, and that no objection was taken on behalf of the defendant, and that said judgment had never been appealed from and never reversed and is in full force and effect to this date, are not valid defenses to the plaintiff’s complaint, for the reason that said court had no jurisdiction whatever to render such judgment, and that the failure to object, either by the defendant or his attorney, or to appeal therefrom, would not in any way confer such jurisdiction upon said court, and for the further reason that said judgment is void as shown by said return. That the power of the city court is fixed by the statutes of the State of Indiana, and that jurisdiction to exceed such powers could not be conferred by any act of the defendant or his attorney. That power and jurisdiction of said John H. Edris, as special judge in said cause, ended with the rendition of the judgment and that the said special judge had no power to issue said writ of commitment. The plaintiff refused to plead further and the cause was tried upon the pleadings. The court overruled the plaintiff’s exceptions to the return of said writ and rendered judgment as follows: “The court, being sufficiently advised in the premises, renders judgment against the petitioner, and in favor of the defendant. It is, therefore, considered and adjudged by the court that the petitioner has not been, and is not *507 now, unlawfully restrained of his liberty by the defendant. It is further considered and adjudged by the court that the said petitioner should be remanded to the custody of the defendant. It is further considered and adjudged by the court that the defendant should recover of and from the petitioner his costs made, laid out and expended in this cause.” The appellant appeals from this judgment and relies upon the following alleged errors for reversal: (1) The court erred in overruling the exceptions of the plaintiff to the return of the defendant to the writ of habeas corpus; (2) that the return of the defendant to the writ of habeas corpus does not state a defense to plaintiff’s cause of action, and the court erred in holding that said return was sufficient. These two separate assignments of error, numbered one and two, raise the same question of law. The appellant contends that the return shows upon its face that the judgment entered in the case of the State of Indiana v. William Hunnicutt, was rendered in the city court of Bluffton, Indiana, and that said court is one of limited jurisdiction, and has no jurisdiction to'pass sentence in a criminal case and to enter judgment therein to exceed six months in prison, nor has it any jurisdiction whatever in a case where the penalty exceeds imprisonment of six months. The appellant was charged in the city court of the city of Bluffton, with unlawfully transporting intoxicating liquor under §1, ch. 23, Acts 1923 p. 70, and pleaded guilty to said charge. The penalty provided for, in a violation of said statute, is as follows: “Any person violating this section, upon conviction, shall be fined not less than $100 and not more than $500, to which shall be added imprisonment in the county jail of not less than thirty days nor more than six months, . . . .” The city court, by §2, ch. 161, Acts 1921 p. 409, had *508 power to render judgment for a fine in any sum not exceeding $500 or adjudge imprisonment for any time not' exceeding six months in the county jail, workhouse or other lawfully designated place of confinement, or both, and therefore had jurisdiction to render judgment for the maximum penalty for a violation of the above statute. The judgment pronounced by the city court' was a final judgment. Where the court has jurisdiction of the party and the subject-matter of the action, the judgment rendered thereon is not void. Church, Habeas Corpus §372; Lowery v. Howard (1885), 103 Ind. 440, 3 N. E. 124; 29 C. J. 51, §46, note 34; McLaughlin v. Etchison (1891), 127 Ind. 474, 22 Am. St. 658. The statute on habeas corpus provides as follows: "No court or judge shall inquire into the legality of any judgment or process whereby the party is in custody, or discharge him when the term of commitment has not expired, in either of the cases following: '. . . Second, upon any process issued on a final judgment of a court of competent jurisdiction.” §1176 Burns 1914, §1200 Burns 1926. A judgment which is not void cannot be attacked collaterally by habeas corpus. The records of a court of inferior and limited jurisdiction are entitled to the same respect and are equally invulnerable to collateral attack as those of courts of general jurisdiction where it is affirmatively shown that the court had jurisdiction of the subject-matter of the action and of the person of the defendant. Peters v. Koepke (1901), 156 Ind. 35, 59 N. E. 33. Appellant admits that the court had jurisdiction of the subject-matter and of the person of the appellant, but claims that the judgment under which the plaintiff is held is illegal because the court lost jurisdiction by assessing an excessive penalty. *509 It appears from the appellant’s complaint that the restraint of which he complains is not under the part of the judgment which exceeds the jurisdiction of the court. The court had a right to assess a fine of $100 and enforce the collection thereof by imprisonment, but the appellant claims that the judgment is void because there is afterward entered a judgment that the appellant shall be imprisoned in the state prison from one to two years, and this judgment is suspended. So, the imprisonment of which the appellant complains has nothing to dp with the part of the judgment which he alleges to be void, but is solely upon the part assessing a fine of $100, which the court, under the statute, had a right to impose. It is not claimed that the appellant is imprisoned under that part of the sentence which attempts to commit him to the state prison not less than one nor more than two years. When persons are held by warrants issued by courts of competent jurisdiction on criminal charges duly presented, the legality of the restraint cannot be investigated. McLaughlin v. Etchison, supra; Pritchett v. Cox (1900), 154 Ind. 108, 56 N. E. 20; Peters v. Koepke, supra; Gillspie v. Rump (1904), 163 Ind. 457, 72 N. E. 138; Webber v. Harding (1900), 155 Ind. 408, 58 N. E. 533. It is conceded that the court in this case did not have power to sentence appellant to the state prison, but the court did have power to assess a fine of $100 and to enforce the collection of such fine, and this power was not in any manner affected by the erroneous clause in the sentence. Church, Habeas Corpus §353, §353a; 29 C. J. 58, §50 and notes; 16 C. J. 1312; Halderman’s Case (1913), 53 Pa. Super. 554, 557. *510 *509 The prevailing rule is that an excessive sentence is merely erroneous and voidable and that the whole sentence is not illegal and void because of the excess. That *510 it is good on habeas corpus so far as the power of the court extends and invalid only as to the excess. Church, Habeas Corpus §353; In re Fanton (1898), 55 Nebr. 703; State, ex rel., v. Reed (1917), 138 Minn. 465; Wallace v. White (1916), 115 Me. 513; Reese v. Olsen (1914), 44 Utah 318; 16 C. J. 1312, §3093, Crim. Law; United States v. Holtz (1923), 288 Fed. 81; People, ex rel., v. Eller (1926), 323 Ill. 28, 153 N. E. 597, 49 A. L. R. 490. In the instant case, the sentence is severable, that is, the part imposing the fine is distinct and separate from the part inflicting the imprisonment. Where the court pronounces a severable sentence, one part of it being authorized by law and another distinct . part not so authorized, the prisoner will not be discharged on habeas corpus until he has served out the legal portion of the sentence. Church, Habeas Corpus (2d ed.) §§365, 373. Where a court has power to sentence to fine or imprisonment and sentences to fine and imprisonment, the sentence is separable, and on payment of the fine or on serving the imprisonment, accused must be discharged. Ex parte Lange (1873), 18 Wall. (U. S.) 163, 21 L. Ed. 872; In re Feeley (1853), 12 Cush. (66 Mass.) 598. So where the statute fixes the punishment at not exceeding six months imprisonment or a fine, or both, and the sentence is for three.years, the prisoner should be released at the expiration of six months. Ex parte Bulger (1882), 60 Cal. 438. Under Pen. Code §1205, authorizing the court, in its discretion, to direct that the defendant be imprisoned until the fine is satisfied, the imprisonment thus provided for is no part of the punishment and the clause in a judgment imposing a fine which directs imprisonment for the purpose of enforcing payment is distinct and separable from the rest of the judgment, and its invalidity and resulting elimination does not affect *511 the validity of the rest of the judgment. In re Sullivan (1906), 3 Cal. App. 193, 84 Pac. 781. The invalidity in the part of a judgment in a misdemeanor case, which, after imposing a fine and imprisonment, directed a further imprisonment until the fine was satisfied, was severable from the valid part of the judgment imposing imprisonment and the payment of a fine, so as to leave the valid part standing. Reese v. Olsen supra. In In re Taylor (1895), 7 S. D. 382, 64 N. W. 253, 45 L. R. A. 136, 58 Am. St. 843, it is held that where the court has jurisdiction of the person and the offense, the imposition of a sentence in excess of what the law permits does not render the legal or authorized portion of the sentence void, but only leaves such portion of the sentence in excess open to question and attack. The petitioner, William W. Taylor, presented to this court his petition for a writ of habeas corpus alleging therein that he was illegally restrained of his liberty by the sheriff of Hughes county. The petitioner set forth in his petition a copy of the indictment, his plea thereto, and judgment of the circuit court of Hughes county. This court thereupon issued its writ of habeas corpus to the sheriff of said Hughes county, who, in obedience to the command in said writ contained, brought before this court the said petitioner, and made return of the cause of his imprisonment, and detention by him as sheriff of said county. From the petition and the return, which contain copies of the same indictment, plea and judgment, it appears that the petitioner was indicted by the grand jury of Hughes county for the crime, as stated generally in the indictment, of embezzlement. To this indictment the prisoner pleaded guilty as charged in the indictment, and the petitioner was thereupon adjudged by the circuit court to be imprisoned in the state prison of the State of South Dakota for the period of five years. *512 It is contended in this case that the law under which the petitioner was indicted did not authorize the court- to impose a sentence of imprisonment for a period exceeding two years, and that, as the sentence imposed was for a period of five years, the judgment is void and the petitioner is entitled to be discharged from custody. In that case, the court says: “There is an irreconcilable conflict in the authorities upon the question as to whether such judgment is void as to the entire sentence, or only void as to the excess. After a careful consideration of the subject, and an examination of nearly all the authorities cited, we are of the opinion that the weight of authority at the present time is that such a judgment is valid to the extent that the court had power or authority to sentence a defendant, and only void as to the excess, and that a defendant may lawfully be held under such a judgment for the period for which the court had power and authority to sentence him.” . In the same case, the court says: “In the case at bar,-we see no difficulty in separating the sentence for two years, for which it is conceded the petitioner might have been- sentenced, from the three years, assumed by us and claimed by counsel to be in excess of the time the petitioner could have been sentenced. Neither the Supreme Court of Wisconsin, nor the Supreme Court of the United States seems to have discovered any difficulty in so separating the valid from the invalid portions of the sentence. The decision In re Fridgeon, read in connection with In re Graham, 138 U. S. 461, fully interprets the meaning of that court in the use of the expression, when such, excess is separable, and may be dealt with without disturbing the valid portions of the sentence. Ten years, says the court, in effect, ... is easily separable from the three years, the void excess in the judgment. When the ten years have expired’ . ■. . 'probably the court will order the prisoner’s dis *513 charge, but until then he has no right to ask the annulment of the entire judgment’.” In the case of Wallace v. White, supra, the same doctrine is affirmed as announced in In re Taylor, supra. In the Wallace case, the petitioner was sentenced in the lower court to imprisonment and the payment of a fine and costs. On appeal, he was defaulted, and it was held that the sentence was not wholly void but was void only as to the additional costs, and that, not having served the lawful sentence of imprisonment and not having paid the fine and costs lawfully imposed by the lower court, the petitioner is not entitled to discharge on habeas corpus. In Ex parte Mooney (1885), 26 W. Va. 36, 53 Am. Rep. 59, it is held that where a court has jurisdiction of the subject-matter and of the person, and it pronounces a severable judgment or sentence,, one part of which is authorized by law and another distinct part is not so authorized, the prisoner will not be discharged on habeas carpus, when it does not appear that he has undergone the full punishment imposed by the legal portion of the sentence. In a West Virginia statute, §9, ch. 118, Acts 1882, it is provided that “If any person maliciously shoot, stab, cut or wound any person, or by any means cause him bodily injury, with intent to maim, disfigure, disable or kill, he shall, except when it is otherwise provided, be punished by confinement in the penitentiary not less than two nor more than ten years. If such act be done unlawfully, but not maliciously, with the intent aforesaid, the offender shall, at the discretion of the court, either be confined in the penitentiary not less than one nor more than five years, or. be confined in jail not exceeding twelve months, and fined not exceeding five hundred dollars.” The judgment under that statute was that the prisoner be conveyed to the penitentiary *514 of the state and be confined therein for the period of one year, and treated therein as prescribed by law, and that he pay a fine of $100 and costs. In that case, the court held that the sentence was separable. As to that part which the court had power to pronounce, the sentence is necessarily valid in a proceeding upon habeas corpus, because in such proceeding the court has no power to modify or correct the sentence. If the judgment is void, it will discharge him, but if it is not void, though it may be erroneous and voidable, this court must remand him and nothing more. It was held that the petitioner should not be discharged because he had not undergone the full punishment imposed by the valid portion of the sentence. The same doctrine has been upheld in People, ex rel., v. Baker (1882), 89 N. Y. 460. In that case, the offense of which the prisoner was convicted was described as an assault and resisting an officer. The sentence was imprisonment for one year and a fine of $500, and the prisoner to stand committed until the fine was paid, not exceeding one day’s imprisonment for each dollar of the fine. It was held that this did not describe the crime within the meaning of the statutory provision declaring that offense, but simply showed a conviction for an assault and battery. Under conviction for assault and battery, the appellant could have been sentenced to imprisonment for one year and pay a fine of $250, the judgment being that he had been sentenced to imprisonment for 'the term of one year and pay a fine of $500, was in excess of the punishment prescribed by law. The court there held that he would not be entitled to his discharge on a writ of habeas corpus until he had served the one year of imprisonment and said, “that is a separate portion of the sentence, independent in itself, and the balance of the sentence can be disregarded. The whole sentence is not illegal and void and not in excess.” *515 *514 In regard to sentences which are lighter than the *515 minimum punishment provided by the statute, the rule in most jurisdictions is that where' the punishment imposed is not of a different kind from that which the statute prescribes, accused cannot claim to have been prejudiced thereby and is not entitled to an appeal. Nor is such a sentence ground for discharge on habeas corpus because of the insufficiency of the punishment imposed. Hence, where a party convicted ought under a statute to be sentenced to two distinct and independent punishments, as fine and imprisonment, it is not error nor ground for his discharge that he is sentenced to one only of such penalties. 16 C. J. p. 1311, §3092, Crim. Law. See Miller v. State (1898), 149 Ind. 607, 49 N. E. 894, 40 L. R. A. 109; Skelton v. State (1898), 149 Ind. 641, 49 N. E. 901; State v. Arnold (1896), 144 Ind. 651, 43 N. E. 871; Nichols v. State (1891), 127 Ind. 406, 26 N. E. 839; Harrod v. Dismore, Sheriff (1891), 127 Ind. 338, 26 N. E. 1072; May v. State (1895), 140 Ind. 88, 39 N. E. 701; State, ex rel., v. Klock (1896), 48 La. Ann. 67, 18 So. 957, 55 Am. St. 259. There are cases holding that where two distinct punishments for an offense are prescribed and but one is assessed, the defendant cannot complain. Dillon v. State (1883), 38 Ohio St. 586; State v. Price (1829), 11 N. J. Law 241; Kane v. People (1831), 8 Wend. (N. Y.) 203; McQuoid v. People (1846), 8 Ill. 76; Barada v. State (1850), 13 Mo. 94. In Dillon v. State, supra, it is said, where the sentence imposed, whether of fine or imprisonment, is authorized by the statute, the failure of the judge to discharge his whole duty by imposing both the fine and imprisonment provided by law will not warrant a reversal. The sentence in such case being warranted, the defendant is not prejudiced by the error of the court in failing to inflict upon him'the additional punishment. Less than the statutory punishment has uniformly *516 been held by this court not to be outside the statute and as sufficient to support a judgment. State v. Arnold, supra; Griffith v. State (1871), 36 Ind. 406; Shafer v. State (1881) 74 Ind. 90; Kenneger v. State (1889), 120 Ind. 176, 21 N. E. 917; Harrod v. Dismore, Sheriff, supra; Nichols v. State, supra; May v. State, supra. The special judge had all the duties and powers of the mayor or city court and one of these duties was to issue the commitment to enforce the judgment, which he had pronounced. The commitment is an execution to enforce the valid part of the judgment and not a supplemental proceeding and comes within the powers and duties of the special judge. A mittimus issued pursuant to a judgment rendered by a police judge in a case in which he had jurisdiction of the subject-matter of the action and of the person of the defendant cannot be inquired into by a writ of habeas corpus. Webber v. Harding, supra. Finding no reversible error in the record, the judgment is affirmed. Martin, J., dissents with opinion.