State Ex Rel. Smith v. Lee

The defendant, Harry Smith, petitions this court for a writ of habeas corpus, claiming that he is unlawfully imprisoned in the penitentiary of North Dakota, by one John Lee, Warden of the State Penitentiary. Accompanying his petition are the records of his case in the district court in and for Grand Forks county, from which it appears that on the 22nd day of May, 1916, the state's attorney of Grand Forks county filed a complaint against the defendant, charging him with murder in the first degree; that he was brought into justice court on said complaint; waived examination, and was held to the next term of the district court. On the 23rd day of May, 1916, the said state's attorney filed an information charging the defendant with murder *Page 87 in the first degree. It appears from the criminal court calendar that on the 23rd day of May, 1916, defendant was arraigned and pleaded guilty to the offense charged in the information. The defendant was sentenced to be confined in the state penitentiary, at hard labor, at Bismarck, Burleigh county, North Dakota, for, and during, his life. The record of the clerk of the court for the May, 1916, term shows: that on the 23rd day of May, 1916, the state's attorney and the defendant came into court, that being the day fixed by the court for pronouncing of judgment on the defendant for the crime of murder in the first degree, as charged in the information, against said defendant; that the defendant was informed by the court of the nature of the information, and of his plea of guilty, and being asked whether he had any legal cause to show why judgment should not be pronounced against him, and no cause being shown, the court does adjudge, and the sentence of the court is, that said Harry Smith be imprisoned in the penitentiary at Bismarck, county of Burleigh, and state of North Dakota, for, and during his life, commencing at 12 o'clock noon of this day. The contention of the defendant is that the sentence is void on the ground and for the reason that his plea of guilty of murder did not designate the degree of murder to which he pleaded guilty, and that his sentence is void under § 9480, Comp. Laws 1913, which reads as follows: Sec. 9480: "Whenever any person prosecuted for murder or manslaughter pleads guilty, he shall, in his plea, designate whether he is guilty of murder in the first degree or in the second degree, or of manslaughter in the first degree or in the second degree, and the court shall, if said plea is accepted, determine the punishment to be inflicted therefor within the limits prescribed by law, and enter judgment against such person in accordance with such determination." The defendant relies upon the case of State v. Noah, 20 N.D. 281, 124 N.W. 1121, in which case said statute was construed and in which it was held that the failure of the court to require the defendant to designate the degree of murder to which he pleaded guilty was error. The case of State v. Noah was not before the court on habeas corpus, but on appeal, and the court did not hold that the judgment in said case was void and without jurisdiction, but does hold that the sentence *Page 88 without requiring the defendant to designate the degree of murder was error and the case was sent back for a new trial. It is the contention of the defendant that habeas corpus will lie in this case for the reason that the time for appeal has gone by. There is hardly any question of law, however, that is better settled than that habeas corpus lies only where the petitioner is confined without jurisdiction. In the case of State v. Floyd, 22 N.D. 183, 132 N.W. 662, Judge Morgan, who wrote the opinion in the case of State v. Noah, supra, holds: "It is elementary law that in habeas corpus proceedings jurisdictional questions only are reviewable or to be considered. The writ cannot be invoked for the purpose of reviewing the acts of courts or officers, where they acted within their jurisdiction, nor for the purpose of correcting irregularities or errors, or as a substitute for an appeal or writ of error. Before the writ is available as a means of release from confinement, it must appear that the court issuing the process, or the officer or person who keeps the applicant in confinement, has acted entirely without jurisdiction. Our statute particularly lays down the grounds on which the writ will issue, and the substance of the statute is embodied in the statement given above. . . . "It appears from the record before us that the petitioner was before the district court on trial under an information charging him with the crime of robbery, and that said court had jurisdiction of that offense, and of the person of the petitioner. . . ." Re Solberg, 52 N.D. 518, 203 N.W. 898; State v. Barnes, 29 N.D. 165, 150 N.W. 557, Ann. Cas. 1917C, 762. In the case at bar, the defendant was brought into the district court of Grand Forks county, charged with the crime of murder in the first degree, committed in the county of Grand Forks and state of North Dakota. The court had jurisdiction over the offense and over the person of the defendant, and the failure to have the defendant designate the degree of murder to which he pleaded guilty, was not jurisdictional. In the case of State ex rel. Styles v. Beaverstad, 12 N.D. 527, 97 N.W. 548, it is held that only questions of jurisdiction can be considered on habeas corpus. *Page 89 A late New York case, People ex rel. Doyle v. Atwell, 232 N.Y. 96, 25 A.L.R. 107, 133 N.E. 364, states: "The court before whom one is brought by habeas corpus simply inquires whether or not the court rendering judgment had jurisdiction to do so, and if it had, and the mandate is regular on its face, the writ is dismissed. "A conviction for murder upon a verdict which fails to specify the degree of murder, when the law divides it into degrees, the punishment varying according to the degree, although erroneous, is not a jurisdictional defect, and the judgment thereon is not void, so as to entitle the person convicted to be discharged upon habeas corpus. "When a court has jurisdiction by law of the offense charged, and of the party who is so charged, its judgments are not nullities which can be collaterally attacked. The writ of habeas corpus cannot be made to perform the functions of a writ of error." Re Eckart, 166 U.S. 481, 41 L. ed. 1085, 17 Sup. Ct. Rep. 638; Hogan v. State, 30 Wis. 428, 11 Am. Rep. 575; Scott R. Habeas Corpus, p. 85; Re McNaught, 1 Okla. Cr. 528,99 P. 241; Re Hayward, 62 Cal.App. 177, 216 P. 14; Ex parte Wilkins, 7 Okla. Cr. 422, 115 P. 1118; Ex parte Burroughs, 10 Okla. Cr. 87, 133 P. 1142. "On habeas corpus after a conviction, the inquiry is limited to the question of jurisdiction." Re Ambler, 11 Okla. Cr. 449, 148 P. 1061. The writ is denied. CHRISTIANSON, Ch. J., and BIRDZELL, JOHNSON, and NUESSLE, JJ., concur. On reargument.