Ex Parte Wood

The relator was placed upon trial in the District Court of Wilbarger County, on an indictment charging him with burglary. To the charge he pleaded guilty. The jury returned their verdict, punishing him by imprisonment for the term of two years. The verdict finds that the defendant, was under 16 years of age. It did not state whether the relator should be sent to the house of correction and reformatory, or the penitentiary, as required by the Act of April 2d 1889 (New Code Crim. Proc., Art. 1145). The court, however, entered tip the judgment, in form, sending him to the reformatory. Believing this judgment to be absolutely void, the appellant seeks, by habeas corpus, to be discharged from imprisonment at the reformatory.

My Brother, HENDERSON, believes the proviso contained in the last act to be void, without any force or effect whatever. I do not take this view of the question. The first act, which was passed March 29th, 1887, upon such a verdict as was rendered in this case, required the judgment and sentence to send the convict to the reformatory. This was imperative, no discretion being left with the jury or the court. Experience, however, taught the legislature that incorrigible criminals were sent to the reformatory, which was against the very object of the law creating such an institution, and hence the proviso contained in the last act, which reads: "Providing the jury convicting shall say in their verdict whether the convict shall be sent to the reformatory or the penitentiary." If the jury should render a verdict that the prisoner was not over 16 years of age, and in the verdict the jury should say he should be sent to the penitentiary for any term, naming it, not exceeding five years, we believe such verdict be legal, and the judgment and the sentence should follow the same. It is contended, however, by relator, that the judgment and sentence are void, because the jury failed to say where he should be sent. The court had jurisdiction of the person and the subject-matter. The court had a legal right to pronounce the judgment rendered in this case, because the law provides, in certain circumstances, such a judgment should be tendered. The punishment imposed was in accordance with the law. It was that prescribed for this offense. It was not greater than the law permitted. It is true that the jury may have sent him to the penitentiary; but we cannot say, upon a silent verdict, that the punishment imposed was without jurisdiction in the court. This is not a in which a different punishment from that inflicted by the jury has been imposed, or a greater punishment, or an illegal punishment. It is a case in which the punishment has been inflicted on a verdict simply failing to name the place where the relator should be confined. The punishment inflicted is the mildest known to law. We have reference to the place, and not to the length of the time of punishment. Under the above case, can a convict be discharged on a writ of habeas corpus? We answer, that he cannot. We have not the time to elaborate this proposition, believing that nothing can be added to the opinions in the cases of State v. Sloan, 65 Wis. 647; 27 N.W. Rep., 616; Turney v. Barr,75 Iowa 758; 38 N.W. Rep., 550; Ex parte Gibson, 31 Cal. 619. Sloan's case must be considered in connection with Hogan v. State, 30 Wis. 439. The writ of habeas corpus is refused.

Habeas Corpus Refused.

DAVIDSON, Judge, concurs.