In re Crandall for a Habeas Corpus , 34 Wis. 177 ( 1874 )

Dixon, O. J.

It is conceded that for mere error, no matter how flagrant, the remedy is not by writ of habeas corpus. For error the party imprisoned must prosecute his writ of error or certiorari. Nothing will be investigated on habeas corpus except jurisdictional defects, or illegality, as some courts and authors term it; by which is meant the want of any legal authority for the detention or imprisonment. The defect here complained of is not jurisdictional. It was at most mere error. There was authority of law expressly given by statute for the sentence pronounced by the circuit court against the petitioner. We can best illustrate our view that the objection is not jurisdictional, by supposing that the question had been raised on the trial of the petitioner, whether a verdict and conviction for assault and battery could be had on an indictment which charged only an assault. If the question had been so raised, and tbe circuit court bad de.cided that the indictment was sufficient for that purpose, that such verdict and conviction could be had, and had so instructed the jury, would that have been a mistake going to the jurisdiction? If a petition for discharge by habeas corpus had been presented setting forth those facts, could the petitioner have been liberated ? We are clearly of opinion that the mistake would not have been jurisdictional, and that the petitioner could not have been discharged. It is obvious that the case as now presented does not differ, or give rise to the application of any different ruie. It is wholly immaterial that the mistake of the circuit court, if mistake it was, occurred at the time of passing sentence upon the accused, instead of upon the trial.

An examination of the authorities cited by counsel for the petitioner shows that there was some jurisdictional defect in every case where tbe writ was allowed. They are like the case put by Mr. Hurd, where he says: “It would be illegal to sentence a man to imprisonment for a crime which was punishable by a pecuniary fine only.”

If there had been no authority in law for the circuit court to punish the petitioner by both fine and imprisonment, a clear case of excess or want of jurisdiction would have been presented, and the petitioner would have been entitled to discharge on this writ. As the case now is, however, he is not entitled to such discharge, but must be remanded to the custody of the sheriff.

By the Court. — It is so ordered.