Chemgas v. Tynan

Mr. Justice Garrigues delivered the opinion of the court. This is a collateral attack upon the judgment of the district court. If the court had jurisdiction to pronounce judgment, it cannot be reviewed on habeas corpus. If the court had no jurisdiction to pronounce the same, it may be disregarded on habeas corpus. After conviction, however illegal or erroneous, if the •court acted within its jurisdiction, the judgment can not be set aside on habeas corpus. This principle of' •collateral attack, runs through both the civil and criminal law. The contention of the petitioner is, that the complaint charges no offense; hence it is a void proceeding, and the court exceeded the limit of its jurisdiction in pronouncing judgment. [38] Prosecutions were formerly.conducted in the name of the crown; under our changed conditions they are conducted in the name of the people. This prosecution is in the name of and by the authority of the people of the state. The complaint sufficiently informs the defendant that he is prosecuted by the state. It states fully the nature and character of the offense, and that the transaction occurred in the city and county of Denver, Colorado. The omitted phrase, “against the peace and dignity of the same,” is a legal conclusion, not entering into the charging part of the complaint. The court had jurisdiction over the offense charged and over the person of the defendant, and was not robbed of its jurisdiction by the complaint failing to-inform him of the. legal conclusion that buggery is a crime against the peace and dignity of the people of the state of Colorado. The information is faulty because of this omission, but the district court was not without jurisdiction to' pass upon this defect. The facts stated in the information constituted a public offense known to the laws of Colorado sufficient to confer jurisdiction upon the district court. What it should have done, had its attention been called to this omission, or because this court would reverse the case on error, cannot avail the defendant in this proceeding. Counsel neglected to avail himself of a motion to quash, or in arrest of judgment, and failed to have the case reviewed here on error. He has waited until petitioner is serving his sentence in the penitentiary, and now seeks in this collateral proceeding to-raise this point for the first time. We do not think that the decisions of this court permit it to be done, unless the information is so drawn as to charge no-offense whatever. — Frisbie v. U. S. 157 U. S. 168; Ex parte Cain, 120 S. W. 999; Caples v. State, 3 Okla. Crim. 72, 104 Pac. 493; State v. Kirkman, 104 N. C. 911, 10 S. E. 312; State v. Peters, 107 N. C. 876, 12 [39] S. E. 74; People v. District Court, 26 Colo. 380; People v. District Court, 33 Colo. 328. The motion to discharge the petitioner on the return will be denied, and he is remanded to the custody of the warden of the penitentiary. Motion denied. Decision en banc. Chief Justice Campbell, Mr. Justice Bailey and Mr. Justice Gabbert, concur. Mr. Justice White, Mr. Justice Musser and Mr. Justice Hill, dissent.