Morris v. Clark ( 1923 )

Gilbert, J.

It is not contended that the sentence is excessive. The sentence is indeterminate, the maximum being within the statute and the minimum being less than the minimum named in the statute. Such a sentence is not void, but is only irregular or erroneous. “ If a court in pronouncing sentence does not follow the law, but imposes a sentence less than that which it is by law directed to impose, the weight of authority is to the effect that such sentence, while not warranted by the law, is not absolutely void but simply erroneous and voidable, and can not be successfully attacked in a collateral way by means of the writ of habeas corpus.” 12 R. C. L. 109, and cases cited. I therefore concur in the judgment, but for reasons different from those stated by the majority.

Chambers & Dickey and J. K. Jordan, for, plaintiff. John A. Boykin, solicitor-general, and E. A. Stephens, for defendant.