Ex parte Burden

1. Criminal Law and Practice. Verdict. Surplusage. A verdict Aiding defendant guilty of assault and battery “with intent to commit manslaughter” is a conviction of assault and battery only; the quoted words being surplusage. 2. Same. Sentence. Habeas corpus. &>'ounds. Jurisdiction, want of. A sentence of a different character from that authorized by law for the crime of which accused has' been found guilty is void and he may be relieved on habeas corpus; but an excessive sentence of the character authorized is not void and relief therefrom can be procured only by appeal. 3. Same. Case. Where the trial court erroneously treated a verdict Anding defendant guilty of an assault and battery with intent to commit manslaughter, as a verdict convicting of a felony, instead of assault and battery only, and sentenced the accused to the penitentiary as for a felony, the sentence was void and defendant entitled to remedy by habeas corpus. 4. Same. Disposition of person. Where in such case the verdict was good as for a misdemeanor the relator should not on habeas corpus be discharged, but should be remanded to the court for proper sentence.

Prom the, judgment of Hon. G. Gardand Lyedd, Chancellor, on habeas corpus, admitting Chester Burden to bail. Burden, the relator, was indicted by the grand jury of, first ■district, Hinds county, for “an assault and battery with intent and in the attempt to kill and murder; ” the jury which tried him in the circuit court found him "guilty of assault and battery with intent to commit manslaughter The circuit court sentenced him to the penitentiary, treating the verdict as a conviction of felony. The relator appealed to the supreme court, pending which he sued out a writ of habeas corpus before the chancellor, claiming that the verdict was a nullity, or at most a conviction of a misdemeanor, and that he was entitled to bail pending the appeal. The chancellor granted •bail and the state appealed to the supreme court. Burden was indicted for assault and battery with intent to kill and murder and the jury brought in a verdict finding him guilty of assault and battery with intent to commit manslaughter. Thereupon the trial court sentenced him to the penitentiary, treating the verdict as a conviction for a felonious assault. Burden took an appeal to the supreme court. Pending this appeal, he sued out a writ of habeas corpus before the chancellor, alleging that the conviction was a nullity or at most was good as a conviction for simple assault and battery and that he was entitled to bail pending appeal as of right. The chancellor adopted this latter view and admitted relator to bail, fixing the amount at $1,000. The condition of the bond is that he appear before the supreme court, and answer to its judgment, if the case be affii-med, or appear before the circuit •court of Hinds county at its next term, should the case be reversed, and abide such lawful sentence for assault and battery ■as that court may impose. Prom this decree, the state appeals. Kelator doubtless relies upon the cases of Morman v. State, 24 Miss., 55; Gibson v. State, 38 Miss., 310, and Bedell v. State, 50 Miss., 492. The Morman case was decided under Hutchinson's Code by the terms of which the offense of assault with intent to kill and murder was one offense with a ten year penitentiary sentence as the maximum and assault with intent to commit manslaughter was another and distinct offense with a five-year penitentiary sentence as the maximum. In this state of the law, the court held that attempt to commit manslaughter was not included as a constituent of attempt to murder, and that upon an indictment for attempted murder, the ■ prisoner could not be convicted of assault to commit manslaughter. The " Code of 1857 seems to- have omitted altogether any statute defining the crime of attempted manslaughter and in'this condition of the statute the Gibson case was decided. This case held p.'operly enough that since no statute defined'an attempt to commit manslaughter as a distinct crime then a verdict of such attempt must be construed as a conviction of simple assault and battery. But by Code 1871, § 2497, the statute was changed and it was made a felony to attempt to commit manslaughter, as well as to attempt to commit murder. However this statuto left it discretionary with the trial court whether upon conviction for such offense, a penitentiary sentence of a jail sentence should be imposesd. Hnder this statute the Bedell case was decided. The chancellor’s decision is not supported by either the Morman case or the Gibson case. For the Morman case held that a defendant indicted for attempt to murder could not be convicted of attempt to commit manslaughter, since the two offenses are by statute separate and disinct. The Gibson case was not authority since there had occurred the radical change in the statute. I submit, therefore, that there may be some very serious doubt as to the soundness of the Bedell case. Now the Code 1906, § 1043, clearly makes it a felony to commit the crime of assault and battery in the attempt to commit manslaughter. So that no question could arise as to the right of the state to indict a man for assault and battery in the attempt to comhiit manslaughter, and upon conviction on such a charge, he could, be sentenced to the penitentiary. So that tho only question in this aspect of the case is as to whether upon, an indictment for assaiilt to murder, the jury is warranted in -finding the defendant guilty of assault to commit manslaughter, or whether that offense would have to be charged in a separate and distinct indictment. It is not my purpose at this time-to argue at length the question of whether the circuit judge in passing sentence on this relator did not misjudge the law. That question will be heard and determined when the case reaches the court on appeal. But I have thus briefly reviewed the course of legislation and decision for the purpose of showing, if possible, that the question of the circuit judge’s action is at least-open to débate, and that in sentencing tho prisoner to the penitentiary on the verdict rendered, there was no clear and palpable violation of a positive and specific statute, but that the error, if any has indeed been committed, was at most simply in error in construing a verdict, which is open to serious question as to its real effect. The question therefore before this court is as to whether the judgment of the circuit court is absolutely void or whether at most it is merely voidable and such an error as can be coxrrected only by appeal. The general rule distinguishing the functions of writs of error and of habeas corpus has thus been clearly stated: “There can be no controversy as to the soundness of the doctrine that ‘errors or irregularities in proceedings behind the judgment can not be inquired into on habeas corpus and that the writ of habeas corpus was never designed to be a writ of error, by which to revise final judgment.’ The difficulty arises, not in the statement of the general rule, but in its application to particular cases. Mere reversible error will not be examined into on habeas corpus, and the party must be driven to his direct appeal, the proper mode for the rectification of irregularities. But for incurable, radical, fatal defects, plainly and indisputably manifest in the record, relief should be granted, even on habeas corpus. Scott' v. State, 70 Miss., 217, 11 South., 657. In the case last cited the relator had been tried by eleven men instead of twelve, and the court held that there had been no trial at all; that no verdict at all had been rendered, and that all the proceedings were a nullity. But here there was a lawful trial, and the only quarrel with the circuit court is an alleged failure to pronounce the proper sentence upon the verdict. The true rule has thus been again stated by our court: “Judgments of courts are disregarded and held for nothing where the court passing the sentence had no jurisidction over the subject-matter or over-the person sentenced; but where jurisdiction- is obtained the judgment rendered is conclusive, except upon appeal. Justices of the peace have jurisdiction to try any and all misdemeanors, of whatsoever character, and the complaint here made is'not of jurisdiction, but of the insufficient charges against Grubbs, and this complaint cannot be examined into upon a writ of habeas corpus. One of the charges tried by the justice of the peace was for exhibiting concealed weapons which imports no crime whatever, and the manifest and painful unfamiliarity of the justice of the peace with, the forms of charging crimes -would have justified him in refusing to try the case and of- binding the offender to the circuit court for trial; but he had jurisdiction of the crime intended to be charged, and having tried and passed sentence, his judgment must be conclusively taken to be corcect, for, having full jurisdiction of the crime and over the offender, his judgment can not be attacked collaterally in a proceedings like this. The petitioner not having insisted on his right before the justice of the peace, his only other remedy is by an appeal of his several convictions to the circuit court. The writ of habeas corpus furnishes no redress for the matters here complained of. Ereem. on Judgments, ch. 29; Church on Ilab. Carp-., ch. 24; Emanuel v. State, 36 Miss., 627.” Ex parte (hmEbs, 79 Miss., 358, 30 South., 708; Éx parte Smith, 79 Miss., 373, 30 South., 110; Ex parte Burles, 58 Miss., 50. I call the special attention of the court to the exhaustive treatment of this question as contained in 15 Am. & Eng. Ency. Law (2d ed.) 170, 1 — 3 et seq. On these pages the whole question is treated with abundant citation of authority. See also 21 Cye.,' 285, as to- exclusiveness of remedy by appeal. In Ex parte Mooney, 53 Am. Bep., 59, relator, who had been convicted of an offense similar to the one in the case at bar was given both a penitentiary sentence and a fine. Upon a hateas corpus proceeding, it was contended that the court was without power to impose both. In reviewing this case, the supreme court of West Virginia uses this language: “Whether or not this^is the true interpretation of the statute (referring to the contention that both -forms of punishment could not be imposed) it is unnecessary and perhaps improper to decide in this proceeding, as it is not the only construction that can by any possibility be given to- it, and the proper mode of having it construed is by writ of error to said judgment and not by this collateral proceeding.” Here is my contention in a nut shell. The sentence in this case is not incorrect by any clear and unmistakable provision of a statute. According to one view of the matter as I have tried to show in the first part of this brief, there is much room for argument on the question of whether or not the circuit judge erred in imposing sentence. Such being the uncertain condition of the law, the judgment is pre-eminently one for review on appeal, not for review on collateral attack. In re Eanton, 70 Am. St. Kep., 118, is a case in point. There .a sentence in excess of the amount fixed by the statute had been imposed and the Nebraska court on the authority of Church on Habeas Corpus, § 370, held that the judgment was voidable merely and not void, and that the relator should have depended upon an appeal. Many authorities are reviewed in the case. As the final word upon this case, I cite with confidence the opinion of the supreme court of the United States in a case where the question was as to the correctness of a judgment founded ón a verdict which the supreme court of Wisconsin had held to bo erroneous. The statute of Wisconsin divided murder into three degrees and provided that the jury should state by their verdict of which degree the defendant was found guilty. This the jury had failed to do and the court sentenced the defendant just as if the verdict had been as directed by the statute. Upon a habeas corpus proceeding the supreme court of the United States used these carefully weighed words: “In the decision refusing the writ applied for by Eckart the supreme court of Wisconsin held that while the conviction under the sentence in question was erroneous, the error in passing sentence was not a jurisdictional defect and the judgment was therefore not void. In this view we concur. The court had jurisdiction of the offense charged and of the person of the accused. The verdict clearly did not acquit him of the crime with which he was charged, but found that he had committed an offense embraced within the accusation upon which ho was tried. It was within the jurisdiction of the trial judge to1 pass upon the sufficiency of the verdict and to construe its legal meaning, and if in so doing he erred, and held the verdict to be sufficiently certain to authorize the imposition of punishment for the highest grade of the offense charged, it was an error committed in the exercise of jurisdiction, and one which does not present a jurisdictional defect, remediable by the writ of habeas corpus. The case is analogous in principle to that of a trial and conviction upon an indictment, the facts averred in which are asserted to be insufficient to constitute an offense against tire statute claimed to have been violated. In this class of cases it has been held that a trial court possessing general jurisdiction of the class of offenses within which is embraced the crime sought to be set forth in the indictment is possessed of authority to determine the sufficiency of an indictment, and that in adjudging it to be valid and sufficient the court acts within its jurisdiction, and a conviction and judgment thereunder cannot be questioned on habeas corpus, because of a lack of certainty or other defect in the statement in the indictment of the facts averred to constitute a crime. Ex parte Coy, 127 XL S., 731, 756 — 758 (32; 271, 280, 281)- and cases there cited.” Be Edward Eehart, 166 XT. S., 178 (11 L. Ed. 1085). This decision is precisely in point and states the whole case for appellant. So here we close with saying that it was for the circuit court, in the absence of a statute, to construe the verdict and determine its real meaning and if it erred, the error can be corrected only by appeal. Before reviewing the points of law involved in a proper de-, cisión of this case, we wish to call the court’s attention to the maimer in which the able attorney general, in his brief, walks squarely up, as it were, to the obstacle which he finds in his path — the crux of this case- — and then calmly turns to the side and as calmly walks around it. The question presented in the'case at bar, as we see it, is not whether the sentence is excessive merely, or whether it is severable,- but whether or not it is absolutely .null and void. Again, the verdict of the jury was not for assault and battery in the attempt to commit manslaughter but with the intent to commit manslaughter. The word- “intent” is entirely overlooked by appellant, and the words “in the attempt” regularly and exclusively used. And well they might be, looking, at the case from appellant’s point of view alone; for there can be no intent to commit manslaughter, as when manslaughter is committed it is committed while the offender is in such a state of mind as to be utterly incapable of forming any intent whatever, and it is this absence of intent which reduces a felonious homicide from the grade -of murder to that of manslaughter. Besides this, without the insertion of these words “in the attempt” appellant’s case must fall. We must look at the verdict as rendered, and interpret it by the common definition and acknowledged understanding of the words embraced in it, and not interpolate and substitute words of our own. It is the intent which governs, and “it is incumbent on the state to prove the specific intent charged.” Mormon v. State, 24 Miss., 54; Thompson v. State, 88 Miss., 223,. 40 South., 545. Erom our point of view, there are only two questions involved in this case, the first being as to whether the circuit court had authority or jurisdiction to impose the sentence, or whether the judgment is void in to to; and the second being whether the chancellor had jurisdiction to entertain the petition for a writ of habeas corpus and to make the order admitting relator to bail. As to the first proposition, we wish to call the court’s attention to the fact that since the year 1847, when the case of Bradley v. State was decided, it has been settled law in this state that the offense of assault and battery in the attempt to commit manslaughter is not an inferior degree of, or in any manner embraced in, a charge of assault and battery with intent to kill and murder, and that a conviction of the former under a charge of the latter is a conviction as for a misdemeanor at most. Bradley v. Stale, 18 Miss., 618; Hutchinson’s Code, Secs. 33 and 36; Mormon v. State, 24 Miss., 54; Gibson v. State, 38 Miss., 310; Code 1871, § 2497; Bedell v. State, 50 Miss., 493; Code 1880, § 2711, Code 1892, § 967, Code 1906, § 1043. In support of the contention of appellee that the writ of habeas corpus was the proper remedy, we cite with confidence the following extracts from “CYC” and the Am. & Eng. Enc. of Law (2d ed.) : “Third. Want or excess of jurisdiction. 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 attack; and at least according to the doctrine of the later case,, in addition to jurisdiction over person and subject matter, the court must have had jurisdiction to render the particular judgment.” 21 Oyc., 296, 297. “Ninth. Want of power to render pa/rticvlar jtidgment. Ju~ risdiction is said to be of two kinds: first, tbe power to hoar and determine the particular matter and render some judgment thereon, and second, the power to render the particular judgment which was rendered; and the idea séems formerly to have prevailed that the jurisdiction of courts consisted entirely of the former of these powers, and that a discharge on habeas corpus could not be granted merely because'the court had no power to render the particular judgment, if it had jurisdiction of the offense and of the person accused.” “The modern rule is that even where 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 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 and character authorized by law, though it has been said that an excessive judgment is one that the court did not have power to render, and is therefore void. The discharge, however, in case a void sentence has been entered on a valid conviction, should be 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 he remanded for sentence.” The error of the circuit court in pronouncing the sentence which was pronounced against appellee, is not merely an irregularity, but is incurable, radical, fatal, plainly and undisputably manifest of record; and it had no power to render that particular judgment. Scott v. State, 70 Miss., 247, 11 South., 657; Ex parte Karris, 85 Miss., 4, 37 South., 505. Neither Ex parte Grubbs, 79 Miss., 358, 30 South., 708; Ex parte Smith, 79 Miss., 373, 30 South., 710, nor Ex parte Burlce, 58 Miss., 50, cited in appellant’s brief, is in point, for there can be no doubt as to the jurisdiction of a justice of the peace to bind over to the grand jury a-person brought before him on a charge of misdemeanor, if in the judgment of the justice of the peace a felony has been committed. Code 1906, § 2753.