State v. Boyd , 110 Miss. 565 ( 1915 )

Holden, J.,

delivered the opinion of the court.

This is an appeal by the state from a judgment of the circuit judge of Attala county releasing the appellee, Gordon Boyd, from custody on conviction of a felony; the action being instituted by a writ of habeas corpus sued out by appellee. The history af the proceedings in the court below is, briefly, as follows:

Appellee was tried at the September, 1913, term of the circuit court of Attala county for assault and battery with intent to kill and murder, and was convicted by the jury. It seems that, while thé circuit judge was away from the courtroom, the jury returned their verdict to the circuit clerk, who received it and discharged the jury; all of which was done in. the absence of the trial judge, but in the presence of the accused and his counsel, who made no objection to this proceeding at the time. Afterwards, a motion was made by appellee to set aside the verdict of the jury because it was returned in the absence of the trial judge. This motion was sustained by the court. On the' same day, the circuit judge entered an order admitting appellee to bail. Thereafter, on the next day, a motion was filed to discharge appellee from the custody of the sheriff, setting up the fact that the verdict of the jury was received in the absence of the trial judge. This, motion was by the court overruled. It further appears that afterwards, on the same day, the appellee moved the court to set aside the order of the court setting aside the former verdict of the jury, which motion was granted and appellee was allowed to withdraw his former motion,, and the order of the court, setting aside the verdict, was set aside. It also appears that afterwards, on the same day, tire circuit judge entered an order sentencing the defendant, upon the judgment of conviction, to a term of five years in the state penitentiary, and ordered that he be remanded to the custody of the sheriff. Following all of this, and on the same day, the appellee sued out a writ of habeas corpus before the same circuit judge, setting out the fact that the jury had returned a verdict in the absence of the judge; and that said verdict, judgment, and sentence of the court was void; and asked that the appellee be discharged from the custody of the sheriff. The district attorney appeared and filed an answer for the sheriff, in which he admitted the facts to be true as set out in the petition for the writ of habeas corpus; and it was further agreed between the counsel on both sides that the appellee and his counsel were present when the verdict was returned and received by the clerk, and that they made no objection thereto at the time. At the conclusion of the habeas corpus trial, the judge entered an •order discharging appellee from further custody, and taxing the state with the costs. Five days thereafter, the trial judge entered another order in his court, commanding the clerk to issue a capias for the arrest of appellee. This was done, .and he was placed under a bond in the sum of five hundred dollars for his appearance at the next term of the circuit court for trial on the original indictment.

It clearly appears from the record here that there was .a valid and lawful judgment upon its face rendered in the circuit court, based upon a conviction by the jury, and that the appellee was sentenced to a term in the penitentiary under this judgment -of the court.

We do not think that the writ of habeas corpus may be successfully invoked in this case. If it be true that the rendition of the verdict by the jury to the clerk, in the absence of the circuit judge, was error and an irregularity, this should have been corrected by motion and appeal in the trial court that convicted appellant on the indictment. As the judgment of the lower court appears from this record to be regular and lawful in all respects, it was not permissible at the hearing of the writ of habeas corpus to inquire into any alleged errors or irregularities in the proceedings behind the judgment. Ex parte Grubbs, 79 Miss. 358, 30 So. 708; Scott v. State, 70 Miss. 247, 11 So. 657, 35 Am. St. Rep. 649; Murrah v. State, 51 Miss. 652; section 2446, Code of 1906. Therefore the court erred in admitting, in the 'habeas corpus hearing, any evidence attacking collaterally the validity of the judgment under which the appellee was then in custody.

“The authorities are uniform and very numerous in holding that the writ of habeas corpus cannot be made to perform the functions of a writ of error or an appeal, and that a person in custody under a judgment or order of a court of competent jurisdiction . . . cannot obtain his discharge on habeas corpus on account of mere errors .or irregularities, however gross, in the judgment or in the proceedings on which the judgment was founded.

. . . (This) doctrine has long since passed beyond the domain of dispute.” Am. & Eng.Encl. Law, vol. 15, pp. 172, 173.

In view of these conclusions, we hold that the circuit judge below committed error in discharging the appellee under the writ of habeas corpus.

We do not pass upon the question as to whether the verdict of the jury, rendered in the absence of the circuit judge, was erroneous and invalidated the judgment, for the reason that no inquiry should have been made in this case as to the proceedings back of the judgment; consequently, this question is not properly before us. So far as this record discloses, the appellee now stands in the attitude of an escaped convict.

This case is reversed, and the petition of appellee is dismissed.

Reversed and dismissed.