Ex parte Burden

Wiiiteield, C. J., delivered the opinion of the court. The verdict in this case was in the following words: “We, the jury, find the defendant guilty of assault and battery with intent to commit manslaughter.” Under the case of Traube v. State, 56 Miss., 153, this has been determined to be a mere conviction of assault and battery; the words “with, intent to commit manslaughter” being mere surplusage. We have, therefore, a conviction of a misdemeanor. The learned circuit court, misinterpreting this verdict, held it to bo a conviction for a felony, and sentenced the defendant to six years in the penitentiary. This sentence it had no power nor jurisdiction to impose. The distinction, abundantly established by authority, is between a sentence which is merely excessive or erroneous, regard being had to the particular offense, and a sentence which is absolutely void. In the former case the writ of habeas corpus cannot be availed of, but the party must appeal; else the writ of habeas corpus would be made to serve the office intended exclusively for an appeal. This last point, and this alone, is what was held in the case of Ex parte Grubbs, 79 Miss., 358, 30 South., 708. That was no case of excessive sentence for any offense; The sole com — 25 — plaint by Grubbs, on habeas corpus, was that the affidavits on which he had been convicted were defective. Of course, the writ of habeas corpus could not be resorted to to try that question. It is no authority whatever on the point in issue hei*e. The true doctrine is laid down explicitly in 21 Cye., at page .296, where is is said: “Want of jurisdiction over person or subject-matter is always a ground for relief on habeas corpus, for, if the court has acted without jurisdiction, its judgment or order is absolutely void even on collateral attach; and at least according ho the doctrine of the latter cases, in addition to jurisdiction over person and subject-matter, the court must have had jurisdiction to render the particular judgment” — citing* innumerable authorities from all over the Union, including Scott v. State, 70 Miss., 247, 11 South., 657, 35 Am. St. Rep., 649, which is directly in point and decisive here. At page 298 of the same authority is laid down the universal doctrine that “mere errors and irregularities which do not render the proceeding void are not ground for relief by habeas corpus. In such case, if the judgment is one from which appeal lies, the remedy is by appeal.” The rule is thus clearly laid down in 21 0jo., at page 294: “But from this it does not follow that the only question which can be inquired into is the jurisdiction of the court over person and subject-matter; but, in addition, the court must, at least according to< the later cases, have had jurisdiction to render the particular judgment, without which its judgment is void and the prisoner entitled to be discharged” —citing numerous authorities. Notice that it is expressly said this is the holding of the latest cases. Again, the rule is thus expressed in 15 Am. & Eng. Ency. of Law (2d ed.) p. 270, that: “Even where a court has jurisdiction of the offense charged and of the peráom of the accused, it may so far transcend its powers in assessing the penalty for the offense, by imposing a punishment of a character different from that prescribed by law, or otherwise, that the sentence will be void and furnish no authority for holding the accused in custody, though the conviction on — 26 — which the sentence was entered was valid and correct; and in such a ease the accused may be discharged on habeas corpus. But it is only when the court pronounces a judgment which is. not authorized by law under any circumstances in the particular case made by the pleadings, whether the trial has proceeded regularly or otherwise, that such judgment can be said to be-void, so as to justify the discharge of the defendant held in custody by it, and a judgment is not considered void, according to what seems to- be the preponderance of authority, merely because it is excessive, if it is of the kind or character authorized by law, though it has .been said that an excessive judgment is one that the court did not have the power to render, and is therefore void. The discharge, however, in case a void sentence has been entered on a valid conviction, should he without prejudice to the right of the prosecution to have the prisoner sentenced according to law, unless, the case is such that the prisoner cannot be remanded for resentence. ” ■ In the case of a judgment or sentence which is merely excessive, it seems to he well settled that, “if the court was one of general jurisdiction, such judgment or sentence is not void ab initio because of the excess, hut it is good so far as the power of the court extends; and is invalid only as to the excess, and therefore a person in custody under such a sentence cannot he discharged on habeas corpus until he has suffered or performed so much of it as it was within the power of the court to impose. This condition exists whenever the punishment imposed is of the nature or kind prescribed by law and merely exceeds the quantity authorized, as where the offender is sentenced to a longer term of imprisonment than is prescribed for the particular offense,” etc. It will he especially noted that both Cyc. and Am. & Eng. Ency. of Law declare it to be the modem rule, according to the latest and best-considered cases, that, although the court may have jurisdiction over the subject-matter and over the person, it is without jurisdiction to impose a sentence not appropriate to the kind and nature of the offense. The27 language used in the Eney. is: “This condition exists [i. e.r habeas corpus cannot be resorted to] whenever the punishment is of the nature or kind prescribed by law and merely exceeds, the quantity authorized.” And again the same authority says, on page 170, that, “even whei'e a court has jurisdiction of the offense charged and of the person of the accused, it may so far transcend its powers in assessing the penalty for the offense by imposing a punishment of a character different from that prescribed by law, or otherwise, that the sentence will be void and furnish no authority for holding the accused in custody, though the conviction on which the sentence was entered was valid and correct; and in such a case the-accused may be discharged on habeas corpusAgain, in the latter part of the same section, it says: “The court, to have power to render the particular judgment, must impose a punishment of the kind or character authorized by law.” This is the true test, the correct distinction. The same doctrine is declared in Windsor v. McVeigh, 93 U. S., 274, 23 L. Ed., 914, and Ex parte Lange,. 18 Wall. (U. S.) 163, 21 L. Ed., 872, both of which are approved in McHenry v. State, 91 Miss., 562, 44 South., 831. We refer to but two other cases. In the case of In re Fanton',. 55 Neb., 703, 76 N. W., 447, 70 Am. St. Bep., 422, it is said:: “If, upon a conviction for burglary, the court should sentence the accused to be hung, the judgment would be void for want of jurisdiction of the court to impose a sentence of that kind in that case. But it would be otherwise if the court should adjudge an imprisonment in the penitentiary for a longer period than fixed by the statute for the crime of'burglary. In the latter case the sentence would be erroneous merely, but not void. In the one case the court had no jurisdiction to impose that particular kind of a sentence upon conviction of burglary,, while in the other the statutory kind of punishment was meted out, although the time of imprisonment exceeded the statutory-bounds. A sentence of a different character than that authorized by law to be imposed for the crime of which the accused — 28 — lias been found guilty is void, while a sentence which imposes the statutory kind of punishment is not absolutely 'void, although excessive. In the former case the entire judgment is invalid, while as to the latter the excessive portion is alone erroneous, and not void in such a -sense as to be available on habeas corpus, at least until after the valid portion of the judgment has been executed.” This is a very precise statement of the true distinction. In- the last case we cite, In re Bonner, 1-51 IT. S., 242, 14 Sup. Ct., 323, 38 L. Ed., 149, the great judge, Mr. Justice Eield, speaking for the court in a case where the defendant was convicted of a crime for which he could not be imprisoned in the penitentiary at all, jnst as here, after a very able discussion of the whole snbject-matter says: “The prisoner is ordered to be confined in the penitentiary, where the law does not allow the court to send him for a single hour. To deny the right of habeas corpus in such a case is a virtual suspension of it; and it should be constantly borne in mind that the writ was intended as a protection of the citizen from encroachment upon his liberty from any source, equally as well from the unauthorized acts of courts and judges as the unauthorized acts of individuals”' — and the prisoner was discharged ■on the writ of habeas corpus, but held to answer further according to law; that is, to appear before the lower court to receive proper sentence. These statements of this elementary principle are clear and accurate, and no other authorities- than those referred to in the text are necessary. "Wherever the sentence pronounced by the circuit judge is merely excessive, or erroneous, or irregular, the writ of habeas corpus has no place, but the defendant must appeal; but wherever, the sentence imposed by the circuit judge for the particular offense of which the defendant has been found guilty by the jury is void for want of "power to pronounce that particular sentence; such sentence is absolutely void, and the defendant may resort to the writ of habeas corpus to release him from confinement in pursuance of such illegal sentence. — 29 — Here we have the case of a man. convicted of a misdemeanor and under sentence as for a felony. Most manifestly the sentence is void absolutely, as one which the court was without power under the law to pronounce at all. It is not correct to say that, if the circuit court interpreted this verdict to be a verdict of guilty of a felony, it was under the duty to sentence as for a felony. Whether the defendant was convicted of a misdemeanor or a felony as a matter of fact is the test as to the sentence to be imposed ; not what interpretation, right or wrong, the circuit court may have put on the verdict. The question is, what was the defendant convicted-of by this verdict? and the answer is plain, “Of simple assault and battery,” and that is a mere misdemeanor. ' How, then, could the circuit court impose the penalty of six years’ imprisonment in the penitentiary on a defendant convicted of mere assault and battery? It is manifest that his judgment was absolutely void. The argument that hateas corpus does not lie to correct a merely excessive sentence is sound enough; but the sentence must always be one proper for a misdemeanor where the conviction is-of a misdemeanor, and one proper for' felony where the conviction is of a felony, else we would introduce interminable confusion into the law. If in this case, for example, the circuit court, treating this judgment, as it should have been treated, as a conviction of simple assault and battery, had imposed an excessive sentence as for a misdemeanor, we would have had the case of a merely excessive or irregular or erroneous sentence ; but, when the court undertook to inipose upon the defendant a felony sentence for a conviction for misdemeanor, it becomes perfectly clear that it imposed a sentence which it was without power or jurisdiction to impose. The one would have been a mere irregular exercise of power; the other the exercise of a power the court was wholly without, since in no possible-case could it have imposed a felony sentence for a mere misdemeanor. One other observation is due to be made, however, in this — 30 — case, and that is that, since this verdict is not a nullity, but was a good verdict for assault and battery, the relator should not be discharged, but should be remanded to the circuit court for proper sentence as for assault and battery. See 21 Cyc., 306, par. 15, where it is said, citing authorities:: “The court may also have jurisdiction to commit a party on one ground, •but not on another, and may nevertheless commit him on both grounds; and in such case the prisoner ought not'to be discharged so long as he is properly imprisoned under the valid ■portion of the commitment.” The decree is affirmed.