Opinion
No. 27839.
April 8, 1929.
1. HABEAS CORPUS. Where trial court had jurisdiction, its record on trial imported verity, and could not be contradicted by parol in habeas corpus proceeding to show one of jurors was not of county of offense ( Constitution 1890, section 26).
Where trial court had jurisdiction of defendant and of crime of murder, its record made on the trial imported verity, and could not be contradicted by parol in habeas corpus proceeding by showing that one of jurors did not live in county where offense was committed, as required by Constitution 1890, section 26.
2. HABEAS CORPUS. Court's decision on qualifications of jurors in criminal case is open to review only on appeal ( Constitution 1890, section 26).
Court's decision in criminal case on qualifications of jurors under Constitution 1890, section 26, is open to review only on appeal to supreme court.
3. HABEAS CORPUS. That defendant did not learn of disqualification of juror until after appeal had been decided did not entitle him to have question considered in habeas corpus proceeding.
That defendant did not learn of disqualification of juror in murder case until after his appeal had been decided by supreme court did not entitle him to have question considered in habeas corpus proceeding.
4. HABEAS CORPUS. Granting of writ of habeas corpus on application therefor is not mandatory ( Hemingway's Code 1927, sections 2149, 2150).
Granting of writ of habeas corpus on an application therefor is not mandatory under Code 1906, sections 2449, 2450 (Hemingway's Code 1927, sections 2149, 2150).
APPEAL from circuit court of Simpson county, HON. T.P. DALE, Chancellor.
See, also, 118 So. 708.
Hilton Hilton, James B. Sykes and Broom Gober, for appellant.
When a judgment is a nullity it should be set aside. In this case the defendant should not be discharged from the custody of the sheriff but should be detained for trial on a pending cause. We take the emphatic position, that in a proceeding of this character where it is alleged and the proof shows, that the judgment on which the petitioner is held, is void, that it can be collaterally attacked, and a writ of habeas corpus is the proper procedure to redress this wrong. 12 R.C.L. 1185; Scott v. State, 70 Miss. 247; Ex parte Phillips, 57 Miss. 357; McHenry v. State, 91 Miss. 562; Ex parte Burden, 92 Miss. 14; Ex parte Moody, 104 Miss. 836. In State v. Chambliss, 107 S.R. 200, we find a full discussion of when a habeas corpus will lie to set aside the judgment of another court, and when a judgment may be collaterally attacked. This is a well-reasoned case, and after a full discussion of the writ of habeas corpus to set aside a void judgment, sums it up as follows: "Whenever a court makes an order beyond its power restraining the liberty of the citizens, it may be collaterally attacked, although the court had general jurisdiction, of the subject of litigation and of the parties." Citing McHenry v. State, 91 Miss. 562. This case sets at rest the question of right to seek, by writ of habeas corpus, relief of such person from a conviction under a void judgment.
The validity or invalidity of the judgment, under which appellant stands convicted, and from which judgment he seeks redress, depends upon the construction of sections 264 and 26 of the Mississippi Constitution. We appreciate the fact that sec. 264 of the Constitution by its provisions cures the verdict of the jury, where the verdict was rendered by a jury that contained a juror who was not a qualified elector and not able to read and write. This section of the Constitution has been passed on many times. Bowman v. State, 106 S.R. 264, citing the following cases: Fulcher v. State, 82 Miss. 630; Tolbert v. State, 71 Miss. 180; Posey v. State, 86 Miss. 151. There is a very interesting differentiation in the reasoning and the rule announced in this line of cases, and the question we raise in this case. For instance in the Fulcher case the question, raised after verdict, was that a juror was not a qualified voter, but an unnaturalized foreigner. Yet the record shows that the juror was of the county where the crime was committed. The same question as to a juror being a qualified elector was involved in the Tolbert case. And it does appear that the juror, to whom the objection was made, was of the county where the crime was committed. The same is true as to the Posey case. In fact in all the cases that we have been able to find in our state, there is not a single case which construes sec. 26 of the Constitution. Section 264 is but supplementary to section 26. That is to say, sec. 26, a part of the Bill of Rights, provides that a defendant, among other rights, must have a speedy and public trial by an impartial jury of the county where the offense was committed, and sec. 264, supplements this provision by further providing that such jury of the county where the crime was committed must have the qualifications to be able to read and write and a qualified elector of such county. If timely objection was made, not only must the juror be of the county where the crime was committed, but must be a qualified elector and able to read and write. If timely objection is not made, for any reason, if the juror is not qualified elector, nor able to read and write, sec. 264 cures such defects in his qualifications, but there is no constitutional curative provision as against the constitutional requirement of sec. 26 that the juror must be of such county. It surely cannot be maintained that the curative effect of sec. 264 reaches back to sec. 26, when sec. 264 makes no such reference or in any wise alludes to the constitutional rights and privileges of the defendant under sec. 26. It is stated in a North Carolina case, State v. Rogers, 46 L.R.A. (N.S.) 38, that which is as follows: "One who pleads `not guilty' to an accusation of murder is entitled to be tried by a jury of twelve men, which he cannot waive even by consenting to proceed with eleven in the jury box when one is found mentally unfit." Jefferies v. State, 74 Miss. 675. We see here the court invoking the constitutional rights guaranteed to the defendant under sec. 26 of the Constitution. For a strict adherence to the Constitution by our courts see White v. State, 85 Miss. 208; State v. Powell, 11 L.R.A. (Cal.) 75. In Shaffer v. State, 1 How. 238, the venire facias directed the sheriff to "summons thirty-six good and lawful men of his county and who are in nowise of kin to James Shaffer, and reside as near as may be to the place where the murder was committed." The point raised by defendant was that the directions to summons the jury, "as near as may be to the place of the offense, was an abridgment of the prisoner's constitutional right to be tried by a jury of the county." In a most interesting opinion, Judge SHARKEY, said, quoting from his opinion: "The taking of our-citizens from their homes and friends to be tried by strangers without the means of a fair investigation have no doubt due weight in the constitutional arrangement. It was made in the spirit of the common law, to secure to the accused a trial by his neighbor, by constituting the citizens of the county as triers, and excluding such as were of a different county." See Scott v. State, 70 Miss. 247; Ex parte Phillips, 57 Miss. 357; Alfred v. State, 33 Miss. 296; Lindsley v. Coahoma County, 69 Miss. 815; Hinton v. Perry County, 84 Miss. 536.
When J.J. White was accepted by an order of the circuit court, as shown by this record, as a juror, a resident of Covington county, Mississippi, the court made an order that he had no power to make, insofar as trying appellant. And the trial of appellant by a jury, on which sat White, was an infringement upon the constitutional right of appellant under section 26. The circuit court of Simpson county had no jurisdiction of appellant, whereby it could impose a death sentence upon the verdict rendered, with juror White sitting thereon. It is true that the circuit court had jurisdiction of the subject-matter, that is the new trial of appellant upon a charge of murder, and had jurisdiction of the appellant, but it had no jurisdiction to make an order sentencing appellant to death, because the court's jurisdiction had been broken and lost, because of the abridgment of the right of appellant to a trial by a jury of his county. It is no answer to say that White voted in Simpson county and claimed his residence in Simpson county, because that is no test. The actual fact of residence must control and not what an individual may desire or say. Neither is it any answer to say that J.J. White only lived two hundred yards over in Covington county from the Covington county line. Just as our court does not measure time by parts of days, so the law does not take a cognizance of distance from a county. It makes no difference whether it is ten yards, two hundred yards, a mile or fifty miles. The law has said that the county line is the boundary and it has provided means and methods of defining county lines J.A. Lauderdale, Assistant Attorney-General, for the state.
The judgment of the circuit court imports absolute verity and cannot be contradicted in habeas corpus proceedings. In Murrah v. State, 51 Miss. 652, the oral testimony showed that there was no jury. The record showed that there was a good and lawful jury. The court held that the record controlled. In Scott v. State, 70 Miss. 247, the record showed that there was a trial by eleven men as jurors. The oral proof showed a good and lawful jury of twelve men. The court held that the record controlled; that it imported absolute verity and could not be contradicted by parol. The decisions of the United States supreme court are in accord with the decisions of this court. In Ex parte Watkins, 7 L.Ed. 650, in an opinion rendered by Chief Justice MARSHALL, the court held: "The exception of person convicted applied particularly to the application now under consideration. The petitioner is detained in prison by virtue of the judgment of a court which court possesses general and final jurisdiction in criminal cases. Can this judgment be re-examined upon a writ of habeas corpus? . . . Can the court, upon this writ, look beyond the judgment, and re-examine the charges on which it was rendered? A judgment, in its nature, concludes the subject on which it is rendered, and pronounces the law of the case. The judgment of a court of record whose jurisdiction is final, is as conclusive on all the world as the judgment of this court would be. It is as conclusive on this court as it is on other courts. It puts an end to inquiry concerning the fact by deciding it." This statement of the court was quoted with approval in Grignon v. Aster, 11 L.Ed. 692. See, also, Riddle v. Dyche, 67 L.Ed. 1009.
In Ex parte Golding, 158 Miss. 233, it appeared that Jack Golding was convicted of crime upon which conviction he appealed to the supreme court, where the judgment was affirmed. He then filed a petition for habeas corpus, in which he alleged the sentence of the circuit court was void, because the minutes were not signed by the court. The court held that where a party convicted of crime prosecutes an appeal to the supreme court on a record which shows a valid judgment and such judgment is affirmed on appeal, such party cannot thereafter attack the validity of the judgment appealed from on habeas corpus. In Ex parte Moody, 104 Miss. 836, it appears that Moody was being detained by a county convict manager. He filed his petition for a writ of habeas corpus. The convict manager was unable to produce a detention warrant. The court in that case held: "Before the court can inquire into whether or not there is a valid and unexecuted sentence outstanding against the relator, the party holding him in custody must produce a detention warrant; without it all, further inquiry is closed." The judgment sentencing Lewis to be hanged is valid on its face; the court had jurisdiction of the subject-matter and of the facts; the sentence did not exceed the authority of the court; the judgment imports absolute verity and cannot be contradicted in habeas corpus proceedings.
The only remedy of appellant for relief against the judgment rendered against him by the circuit court was by appeal to the supreme court. He has exhausted this remedy. He cannot now resort to habeas corpus proceedings. Ex parte Grubbs, 79 Miss. 358; Nimocks v. McGehee, 97 Miss. 321; Dixon v. Rowland, 143 Miss. 273; Ex parte Golding, 148 Miss. 233; Hays v. Barnes, 148 Miss. 599; Ex parte Lennon, 41 L.Ed. 1110; Goto v. Lane, 68 L.Ed. 1070; Knewel v. Egan, 69 L.Ed. 1006.
Argued orally by S.C. Broom, for appellant, and J.A. Lauderdale, for the state.
The appellant was convicted of murder and sentenced to be hanged. A few days prior to the day set for the execution of the sentence, he sued out a writ of habeas corpus alleging that he was unlawfully restrained of his liberty by the sheriff. The petition for the writ of habeas corpus alleges that the appellant was not tried by a lawful jury, for the reason that one of its members was not "of the county where the offense was committed," as required by section 26 of the Constitution.
The judgment under which the appellant is being held by the sheriff sets forth his plea of not guilty, and "whereupon came a good and lawful jury of twelve men composed of J.M. Little, J.H. O'Neal, W.W. Harris, W.L. Polk, Jack Smith, J.S. Little, Otha Crawford, N.J. Holmes, J.J. White, Henry Berry, Anse D. McLendon, and J.E. Lavton, all of which named persons were elected, empanelled, charged and specially sworn and accepted by the state and the defendant, and their respective counsel, to well and truly try the issue joined between the state of Mississippi and the defendant, R.V. Lewis, and a true verdict render according to the law and evidence in said case and whereupon the jury was found qualified in every respect, and they were sworn and accepted as aforesaid in this cause," etc.
J.J. White is the juror alleged by the appellant to have been disqualified because "not of the county;" and it appears from parol evidence introduced by the appellant in the habeas corpus trial that White lives in Covington county a short distance from the line separating it from Simpson county, in which latter county appellant was tried and convicted. The writ was granted by Hon. T. Price Dale, chancellor of the Tenth district, who, when the case was heard by him on its merits, declined to discharge the appellant, but remanded him to the custody of the sheriff.
The appellant's contention is that the right to a trial by a jury "of the county" is fundamental and cannot be waived; consequently, the verdict rendered by the jury is void, and the court was without power to impose sentence thereon.
The state's contentions are: (1) That the defect alleged in the qualifications of the juror, Smith, is cured by section 264 of the Constitution; and (2) that the recital in the judgment under which the appellant is being held by the sheriff, that he was tried by a lawful jury of twelve men, imports verity and cannot be contradicted by parol in a habeas corpus proceeding.
The first of these questions will be pretermitted, for the reason the second must be decided in accordance with the state's contention.
This court is committed, in line with the great weight, if not all, of authority, to the proposition that where the trial court has jurisdiction of a defendant and of the crime with which he is charged, its record made on the trial imports verity and cannot be contradicted by parol in a habeas corpus proceeding.
In Murrah v. State, 51 Miss. 652, one of the relator's contentions, in a habeas corpus proceeding, was "that the judgment is fraudulent and void." In order to maintain this proposition, the relator sought "to prove by parol evidence, that the recital in the record of a trial by jury was not true. This evidence was rejected, and the relator was remanded to the custody of the sheriff to be held in obedience to the conviction of the sentence." The opinion of the court then proceeds in part as follows:
"That the record imports absolute verity is a rule too well established in reason and by adjudication to be now questioned. If the contradiction or impeachment of a record by parol evidence were to be permitted in a single instance, the value of records would be utterly destroyed. With a solitary precedent, sanctioned by this court, there would follow a train of evils utterly impossible to estimate. Litigation would have no limit; the rights of parties would be without a final resting place; the sanctity and verity of records would give place to all the uncertainties, imperfections, infirmities and conflicts of the human mind; and the courts would be powerless to render any adjudication permanent. The rules of law upon this subject are founded upon these evident principles, or axioms, that it is for the interest of the community that a limit should be prescribed to litigation, and that the same cause of action ought not to be brought twice to a final determination. 1 Greenl. Ev., section 522. See, also, 1 Ph. Ev., C., H. E. notes, 581; 2 Id. 2; 3 Bac. Abr. 533; 1 Ch. Bl. 349, side page; 2 Id. 25, top page.
"In this state, the proposition under consideration has been both emphatically and pertinently decided in several cases. Mandeville v. Stockett, 28 Miss. 398; Shirley v. Fearne, 33 Miss. 653, 69 Am. Dec. 375; Dogan v. Brown, 44 Miss. 235. See, also, Gilbert v. McEachen, 38 Miss. 469; Burney v. Boyett, 1 How. 39; Dickson v. Hoff's Adm'r, 3 How. 165; Russell v. McDougall, 3 Smedes M. 234; Steen v. Steen, 25 Miss. 513; Eakin v. Doe ex dem. Vance, 10 Smedes M. 549, 48 Am. Dec. 770. As in the case at bar, it was proposed in Shirley v. Fearne, 33 Miss. 653, 69 Am. Dec. 375, supra, to impeach the record by the parol evidence of the clerk, and the proposition was very positively condemned. The points of decision in the two cases are almost . . . parallel. No rule of law is older than the one indicated. Its antiquity is beyond ordinary research."
The rule there so clearly announced has been consistently followed by this court, and has long since ceased to be open to review. The same conclusion was recently arrived at by the supreme court of the United States in Riddle v. Dyche, 262 U.S. 333, 43 S.Ct. 555, 67 L.Ed. 1009. In Scott v. State, 70 Miss. 247, 11 So. 657, 35 Am. St. Rep. 649, the record recited a conviction by a jury composed of only eleven men. The state proved on the habeas corpus trial that this was a clerical error and that the relator had been, in fact, tried by a jury of twelve men. On this evidence the relator was remanded to the custody of the sheriff. This court, when the case came to it on appeal, held that this evidence could not be taken into consideration, but that the case must be tried on the record, from which it appeared that the relator had not been tried by a lawful jury. In all of the cases in which this court has dealt with this question it has confined its investigation to the record. State v. Chambliss, 142 Miss. 256, 107 So. 200, is no exception, for the reason that the verdict of acquittal on which the trial court declined to discharge the relator was returned into court by the jury, and was, by order of the court, filed by the clerk, thereby becoming a part of the record of the trial.
Section 26 of the Constitution not only provides that the jury must be "of the county," but that it shall be "impartial." One of these qualifications is just as essential as the other; and, if either of them is open to review on parol evidence in a habeas corpus proceeding, the other must also be. The trial court must decide both of these qualifications on the evidence, and its decision thereon, like its decisions on all other questions of fact arising at the trial, is open to review only on an appeal to the supreme court. The appellant appealed from the judgment of conviction to this court ( Lewis v. State, 118 So. 708), and no ruling of the court on the competency of this juror was there assigned for error, so that the case comes within the rule announced in Ex parte Golding, 148 Miss. 233, 114 So. 385. That the appellant did not learn, as he claims — and we presume the fact is — of the disqualification of the juror until after his appeal had been decided by this court, cannot be here taken into consideration. To hold otherwise would open the door for a collateral attack on judgments for other similar reasons, and there would then be no end to the possibilities for the continuance of litigation.
We have left out of view section 1413, Code 1906 (section 1229, Hemingway's 1927 Code), and express no opinion on its effect, if any here.
The only error committed by the chancellor below was in granting the writ, which we presume he did on the theory that the granting of such a writ on an application therefor is mandatory. Such is not the fact. Section 2449, Code 1906 (section 2149, Hemingway's 1927 Code) requires that "the facts and circumstances of the restraint, with the ground relied on for relief," be set forth in a petition for a writ of habeas corpus; and section 2450, Code 1906 (section 2150, Hemingway's 1927 Code) provides that: "If from the showing made by the petition for habeas corpus it be manifest that the person by whom, or on whose behalf, it is presented is not entitled to any relief thereby, the judge or chancellor may refuse to grant the writ, indorsing on the application his reason therefor."
Affirmed.