In re Shinski

Keewin, J. It appears from tbe record upon tbis bearing tbat tbe petitioner was arrested, tried, and convicted in tbe municipal court of Milwaukee county upon a charge of assault with intent to do great bodily barm, and upon such conviction was on tbe 31st day of December, 1904, sentenced to confinement at bard labor in tbe bouse of correction of Milwaukee county for tbe term of one year and six- months. Attached to tbe petition for a writ of habeas corpus, and as part of tbe record before us, are certified copies of the information charging petitioner with tbe crime of assault with intent to do great bodily barm, record of tbe municipal court of tbe trial bad thereon, and certificate of conviction and sentence. Tbe alleged defects in tbe trial and proceedings re282 suiting in conviction and sentence, upon wbicb petitioner relies for bis discharge,, are that the petitioner was tried before the municipal court of Milwaukee county, together with-one Louis Shinski, upon information for assault with intent to do great bodily harm, and that the jury before whom petitioner was tried was drawn, impaneled, and sworn while neither petitioner nor said Louis Shinski was in court, and that while the trial was in progress, and before a verdict had been returned, the court excused one of the jurors from further service, leaving only eleven jurors before whom petitioner was tried upon said charge, and that the verdict of guilty upon the charge was rendered by eleven jurors instead of twelve. It appears from the recoi’d that counsel assigned by the court' to defend petitioner specifically waived the presence of petitioner in court during the impaneling and swearing of the jury, and that thereafter and on December 13, 1904, petitioner'and his said counsel.appeared in court and accepted the jury as impaneled and sworn, and proceeded with the trial; that on the 15th day of December, 1904, and during the progress of the trial, and at request of petitioner’s counsel and in the presence of petitioner, the court excused one of the jurors on account of the illness of his. brother, and the trial, by consent of all parties, proceeded with eleven jurors. Whether any error was committed by the trial court as claimed by petitioner here is not before us and cannot be reviewed in this proceeding. There is no question but that the municipal court obtained jurisdiction of the person of the petitioner upon the charge made against him. ILe was brought before the court on information charging him with the offense, to which he pleaded not guilty. The court had jurisdiction to try him upon the chai-ge made and proceed to judgment, and authority to sentence the accused to punishment by confinement at hard labor in the house of correction of Milwaukee county, and, if the court committed error, it was error within its jurisdiction, and such error cannot be re [283] viewed upon habeas corpus. As said in State ex rel. Welch v. Sloan, 65 Wis. 647, 651, 27 N. W. 618: “It is only when tbe court pronounces a judgment in a criminal case 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 such judgment.” It is elementary that a writ of habeas corpus cannot be' made to perform the functions of a writ of error, and that, upon habeas corpus, only questions of jurisdiction of the court or officer to issue the process upon which the prisoner is held in custody can be considered. Such writ “does not reach beyond the commitment to the proceedings leading up thereto, where the person in custody is detained by virtue of the final judgment or order of á court having jurisdiction of' the subject matter and the person.” State ex rel. Durner v. Huegin, 110 Wis. 189, 85 N. W. 1046; sec. 3408, Stats. 1898. But it is unnecessary to pursue the matter further, since this court has so often passed upon the question, and has uniformly held that, unless there is such a want of jurisdiction in the court as to render the judgment void, the petitioner cannot be relieved on habeas corpus, but resort must be had to a writ of error. In re French, 81 Wis. 597, 51 N. W. 960; In re Eldred, 46 Wis. 530, 1 N. W. 175; In re Milburn, 59 Wis. 24, 17 N. W. 965; In re Graham, 74 Wis. 450, 43 N. W. 148; In re Pikulik, 81 Wis. 158, 51 N. W. 261; In re Schuster, 82 Wis. 610, 52 N. W. 757; In re Eckart, 85 Wis. 681, 56 N. W. 375; State ex rel. Dunn v. Noyes, 87 Wis. 340, 58 N. W. 386; In re Rosenberg, 90 Wis. 581, 63 N. W. 1065, 64 N. W. 299; In re Roszcynialla, 99 Wis. 534, 75 N. W. 167. By the Court. — The demurrer to the return is overruled and the petitioner, John Shinshi, is hereby remanded to the custody of the keeper of the house of correction for Milwaukee county.