Ex Parte William M. Webb.

By the Court, Bonnifield, J.: The petitioner applied to this court for a writ of habeas corpv,s, which was granted. It appears that he is held in custody by the sheriff of Humboldt county, by virtue of a commitment, issued from a justice’s court, based on a judgment of that court, which in effect requires the petitioner to enter into bond to keep the peace, etc., and, in case of failure to give the said bond, that he be imprisoned in the county jail of said county for the period of fifty days. He alleges by his petition that the illegality of his restraint consists of this, to wit: First — That the jurisdiction of the justice’s court has been exceeded. Second — -That the commitment was issued in a case not allowed by law. Third — That the judgment upon which the commitment issued is not authorized by any provision of law. The offense charged in the complaint laid before the justice is the common-law offense of forcible entry. Counsel *241 contends, substantially, that forcible entry is not a public offense punishable under the criminal laws of the state; that a statute of this state gives the aggrieved party a civil remedy, and the legislature having thus acted on the subject of forcible entry and detainer, the civil action has superseded the common-law remedy, and that no such crime as forcible entry is designated by the criminal laws of this state, nor any other punishment permitted nor intended except such as is provided in the act of 1865 concerning forcible entries and unlawful detainers. We cannot agree with counsel in his contention. Section 151 of the act concerning crimes and punishments provides: “All offenses recognized by the common law, and not herein enumerated, shall be punished, in case of felonies, by imprisonment in the state prison for a term not less than one year nor more than five years, and in case of misdemeanors, by imprisonment in the county jail for a term not exceeding six months or less than one, or by fine not exceeding five hundred dollars, or by both.” * * * The crime of forcible entry is not enumerated in said act.' But it is a misdemeanor as recognized by the common law. ’(2 Bish. New Crim. Law, sec. 492; Harding’s Case, 1 Greenleaf, 22; 4 Blackstone, 148.) “An act concerning forcible entries and detainers has not abolished or repealed the common law upon this subject.” (Cruiser v. State, 18 New Jersey, 206.) The New Jersey act is substantially the same as ours. In the above case Cruiser was charged as by the common law of the offense of forcible entry and detainer, there being no criminal statute in that state for punishing such offense. We conclude from the provisions of our crimes act, above referred to, and the authorities above cited among others, that the offense of a forcible entry is punishable as a misdemeanor by fine or imprisonment, or both, as provided by said section 151. ' But we are of opinion that the judgment given in this case by the justice’s court is not authorized by law. Under the charge made by the complaint the court had no authority to require the defendant to give bonds to keep the peace, nor in default thereof to adjudge that he be imprisoned. The com *242 plaint was not made under the provisions of the criminal procedure for the prevention of public offenses, but it is a complaint alleging the commission of certain unlawful acts which, under the common law, constitute the offense of forcible entry, and for which said section 151 provides the punishment. There are three essential elements necessary to render convictions valid. These are, that the court must have jurisdiction over the subject matter, the person of the defendant and authority to render the particular judgment. If either of these elements is lacking, the judgment is fatally defective, and the prisoner held under such judgment may be released on habeas corpus. (Brown on Jurisdiction, 110, and cases cited; Courts on Jurisdiction, 641, and citations.) The justice’s court did not have the authority to render the judgment given in this case. The petitioner must be discharged from custody, and it is so ordered.