When a court in sentencing a prisoner exceeds the limit of its jurisdiction, and imposes a greater penalty upon the prisoner than it is authorized to do in the particular case before it, a writ of habeas corpus will | lie in behalf of the prisoner.

If these facts appear the prisoner is entitled to his absolute discharge.

the time during which he might legally be detained has expired. This explains the position which the supreme court of that state takes in the case of Re Graham, 74 Wis. 450.

In New York the statutory provision is that "the court or judge must forthwith make a final order to remand the prisoner if it appears that he is detained in custody for either of the following causes, and that the time for which he may legally be so detained has not expired.

It is upon that statute that the case of People, Trainor, v. Baker, 89 N. Y. 460, rests, and People, Tweed, v. Liscomb, 60 N. Y. 559, 19 Am. Rep. 211, was decided.

Wisconsin has a statute that the prisoner cannot be discharged on habeas corpus until sentence has been reversed and a new trial granted. The practice in some courts has been to reverse the sentence with instructions to the court below. The proper sentence has been imposed and the prisoner remanded by the courts, in other cases. Execution has been stayed upon the prisoner giving bail for his future appearance in a few instances. The prisoner has also been remanded and the record corrected in some cases, and in one instance the prisoner was discharged upon suing out a writ of error.

In some cases the courts have held that in imposing the excessive sentence the court has exceeded its jurisdiction, and upon this ground has ordered him to be discharged upon habeas corpus. These cases will be found treated of and collected infra, III.

In many cases the prisoner has been released from custody upon habeas corpus where the court imposing the sentence had really no power or jurisdiction to commit. These cases are not squarely those in which the sentence exceeds the maximum punishment, and are therefore not within the scope of this note.

If the plaintif has appealed from the judgment of a magistrate upon the ground of an excessive fine, he cannot subsequently move by way of motion to arrest the judgment. State v. Tibbetts, 86 Me. 189, 190.

And if the punishment is specifically described by the statute defining the offense, all other degrees of punishment than such as are there prescribed are excluded and unauthorized.

Haney v. State, 5 Wis. 529, 533.

In People v. Harrington, 75 Mich. 112, it is said that the settled law of that state is that for a conviction at the circuit of a crime within the jurisdiction of a justice no greater punishment can be given than can be imposed by a justice.

The court may reduce or lower in extent or degree any sentence so as to make it conformable to law, where a mistake or error is shown to

Com., Davis, v. Lecky, 1 Watts, 66, 26 Am. Dec. 40; People, Stokes, v. Riseley, 38 Hun, 280; People v. Carter, 48 Hun, 165; Ex

exist in it. It may change the form of the judgment, or give a new form to it, so as to bring it within the jurisdictional scope of a legal conviction. Territory v. Conrad, 1 Dak. 348, 355.

And if there is an abuse of discretion by the infliction of a cruel punishment, the court has power to set it aside. Cornelison v. Com. 84 Ky. 583.

It has been stated that if a jury render a verdict so excessive as to contravene the inhibition of the Constitution, the wrong or vice done lies in the verdict and not in the statute under which the penalty is inflicted, and if a jury impose such a fine it is the province cf the court, and its duty, to set the verdict aside. Southern Exp. Co. v. Com., Walker, 92 Va. 59, 67, 41 L. R. A. 436.

So, if the penalty defined by a municipal ordinance is within the limits prescribed thereby the city authorities can neither extend nor diminish such sentence. State v. Boneil, 42 La. Ann. 1110, 10 L. R. A. 60.

In Southern Exp. Co. v. Com., Walker, 92 Va. 59, 67, 41 L. R. A. 436, it is said that the question of an excessive fine is a judicial one, and does not affect the validity of a statute imposing it, and when, if ever, such fine is imposed by a jury, the correcting hand of the court will annul it in accordance with the letter and spirit of the bill of rights.

When there is no power to impose either imprisonment or hard labor, or when the punishment the statute authorizes cannot be carried into effect by reason of the failure of the proper authorities to make the necessary orders, or to provide the necessary machinery for its enforcement, then restraint may, and sometimes does, become unlawful, and the prisoner will be discharged. Harrington v. State, 87 Ala. 1; Ex parte McKivett, 55 Ala. 236; State, Marion County, v. Metcalfe, 75 Ala. 42; Er parte Crews, 78 Ala. 457; Ex parte Buckalew, 84 Ala. 460.

The want of power in the court to impose the sentence does not, however, always entitle the prisoner to his discharge, as is shown by the cases cited in the subsequent parts of this annotation, which draw a line between void and voidable judgments.

In Ex parte Cox (Idaho) 32 Pac. 197, a distinction is clearly drawn between a sentence which is voidable only, and one which is absolutely void, and the court points out that in the

parte Cox (Idaho) 32 Pac. 197; Idaho Rev. Stat. §§ 8353, 8354; Ex parte Page, 49 Mo. 291; People, Tweed, v. Liscomb, 60 N. Y. 559, 19 Am. Rep. 211; Ex parte Bernert, 62 Cal. 524; Feeley's Case, 12 Cush. 598; Re Long, 87 Ala. 46; Ex parte Reynolds, 87 Ala. 138; Ex parte McGrew, 40 Tex. 472; Re Stewart, 16 Neb. 193; Ex parte Tuicher, 69 Iowa, 393; Re Dill, 32 Kan. 668, 49 Am. Rep. 505; Re Monroe, 46 Fed. Rep. 53.

The judgment is not severable so that the good part could be separated from the bad.

Ex parte Kelly, 65 Cal. 154; Ex parte Sylvester, 81 Cal. 199.

A judgment may be collaterally impeached by habeas corpus or otherwise when void by reason of the court not having jurisdiction to render the particular judgment. 12 Am. & Eng. Enc. Law, p. 247, note 1; 19 Cent. L. J. 102; Lefforge v. State, 129 Ind. 551; Scamster v. Blackstock, 83 Va. 233.

former case the prisoner should be remanded, while in the latter he should be set at liberty.

A sentence is legal so far as it is within the provisions of law and the jurisdiction of the court over the person and offense, and only void as to the excess when such excess is separable and may be dealt with without disturbing the valid portion of the sentence. State, Dudoussat, v. Klock, 48 La. Ann. 67, 72. To the same effect, Ex parte Mooney, 26 W. Va. 36, 53 Am. Rep. 59; Brooks v. Com. 4 Leigh, 669; Murray v. Com. 5 Leigh, 720, 724 Hall v. Com. 6 Leigh, 615, 618, 29 Am. Dec. 236; People, Tweed, v. Liscomb, 60 N. Y. 560, 19 Am. Rep. 211; Feeley's Case, 12 Cush. 598; Ex parte Shaw, 7 Ohio St. 81, 70 Am. Dec. 55; People v. Markham, 7 Cal. 208; People, Trainor, v. Baker, 89 N. Y. 467; Sennott's Case, 146 Mass. 489, 493; People, Woolf, v. Jacobs, 66 N. Y. 8; Bigelow v. Forrest, 9 Wall. 339, 19 L. ed. 696; Ex parte Bond, 9 S. C. N. S. 80, 30 Am. Rep. 20; Ex parte Lange, 18 Wall. 163, 21 L. ed. 872; State, Hull, v. Wolfer, 68 Minn. 465, 466.

b. In United States courts.

In the case of United States v. Pridgeon, 153 U. S. 48, 62, 38 L. ed. 631, 637, the court stated the rule to be that a sentence is legal so far as it is within the provisions of law and the jurisdiction of the court over the person and offense, and only void as to the excess when such excess is separable, and may be dealt with without disturbing the valid portion of the sentence. This statement of the law overrules the doctrine laid down by the court below in that

case.

The ruling of the court below followed that expressed by the court in the case of Harman v. United States, 50 Fed. Rep. 921, 922, wherein the court stated that in the courts of the United States the rule was that a judgment in a criminal case must conform strictly to the

statute, and that any variation from its provi

sion, in either character or extent of the punish

ment inflicted, rendered the judgment absolutely void; and further, that although a different rule prevailed in some of the states, yet the rule prevailing in a state, whether by statute or judicial decision, had no force in the Federal courts administering criminal justice under the Constitution and laws of the United States, and that in those courts the doctrine of the Supreme Court of the United States was a paramount authority.

Messrs. Coe I. Crawford, Atty. Gen., and John A. Holmes, for the State:

If the court had jurisdiction, and the commitment is in proper form, a party committed for contempt cannot be discharged. People, Mitchell, v. Sheriff of New York, 29 Barb. 622.

Error committed by a criminal court having jurisdiction of the offense and of the person cannot be remedied by habeas corpus. Re Cavanagh, 10 How. Pr. 27.

An error in the sentence of a criminal court, as to the place of imprisonment, cannot be reviewed on habeas corpus; the criminal court having jurisdiction to determine the question before it.

People, Rice, v. Keeper of Penitentiary, 37 How. Pr. 494.

Where a writ of habeas corpus is directed to a public officer who returns that he holds the relator by legal process, if such process be sufficient on its face to protect the magistrate by whom it was issued, the court can

In the case of Harman v. United States, however, the question was not one of the infliction of an excessive sentence but a case in which the court had neglected to inflict a sentence of hard labor as required by § 3893, U. S. Rev. Stat.. upon a conviction of mailing an obscene paper.

In the above case, the court relied upon several authorities which are set forth and discussed later in this note, as upholding the doctrine therein set forth, to the effect that the judgment is absolutely void.

in

V.

Among these cases is the case of Re Mills, 135 U. S. 263, 271, 34 L. ed. 107, 110, in which the court discharged the prisoner on habeas corpus, holding that because the sentence was entirely void, and not merely erroneous, the court below had no jurisdiction to pass it. Another case relied upon Harman United States is Re Graham, 138 U. S. 461. 462, Graham v. Weeks, 34 L. ed. 1051, 1052, in which the discharge of the prisoner upon habeas corpus was refused, as the sentence was not absolutely void but erroneous, the Wisconsin statute making special provisions for the correction of an excessive sentence by appeal, and denying the right to proceed by way of habeas corpus. In this case, however, Mr. Justice Field distinctly says that it is undoubtedly the general rule that a judgment rendered by a court in a criminal case must conform strictly to the statute, and that any variation from its provisions, in either character or the extent of punishment inflicted, renders the judgment absolutely void. But as the case was held to be governed by the law of the state that statement may be deemed a dictum, and is certainly overruled by the case of United States v. Pridgeon, 153 U. S. 48, 62, 38 L. ed. 631, 637.

The court in the Harman Case also cites Ex parte Lange, 18 Wall. 163, 176, 21 L. ed. 872, 879, in which Mr. Justice Miller says that a judgment rendered without power or authority,

or one rendered in excess of the authority of the

court, is void; but he was discussing judgments that are void in toto, and not speaking of those which are merely excessive, or in some other way differ from the provisions that should be imposed.

In Ex parte Karstendick, 93 U. S. 396, 403, 23 L. ed. 889, 891, the court showed that upon a void commitment the prisoner would be discharged upon habeas corpus; but in that case the court refused to discharge the prisoner. as

Bennac v. People, 4 Barb. 31. See also Ex parte Milburn, 9 Pet. 704, 9 L. ed. 281; Ex parte Clawson (Utah) 5 Pac. 74.

In case of excessive sentence the only remedy is by writ of error. If the sentence in any case is found to be excessive, the supreme court may modify it upon writ of er

ror.

Territory v. Conrad, 1 Dak. 355; Hussy v. People, 47 Barb. 503; O'Leary v. People, 17 Ilow. Pr. 316; People v. Vanard, 6 Cal. 562; People v. Wilson, 9 Cal. 260; People v. Murat, 45 Cal. 281; Ex parte Hartman, 44 Cal. 35; Ex parte Max, 44 Cal. 579; Ex parte McLaughlin, 41 Cal. 220, 10 Am. Rep. 272; Wright v. State, 5 Ind. 290, 61 Am. Dec. 90; Ex parte McCullough, 35 Cal. 100; People, Mitchell, v. Sheriff of New York, 7 Abb. Pr. 96; People v. Cassels, 5 Hill, 167; Ex parte Gibson, 31 Cal. 619,91 Am. Dec. 546. Jurisdiction of the "matter" or "subjectthe commitment to the penitentiary in another state was within the power of the court.

And Re Johnson, 46 Fed. Rep. 477, 481, is also relied upon as sustaining the same doctrine. In this case the court exceeded its authority, and the prisoner was discharged on habeas corpus.

But in the case of United States v. Pridgeon, 153 U. S. 48, 62, 38 L. ed. 631, 637, without reviewing all the authorities or attempting to reconcile them, the court stated that they all conceded that neither irregularities nor error, so far as they were within the jurisdiction of the court, could be inquired into upon habeas corpus, although they differed widely as to what constituted error, and what should be regarded as rendering the judgment or proceedings void. But this case distinctly lays down the rule stated at the beginning of this subdivision, holding that a sentence may be enforceable in part though invalid in another part.

And so, in Re Swan, 150 U. S. 637, 653, 37 L. ed. 1207, 1211, relied upon by the court in the Pridgeon Case, the court also refused to discharge the prisoner upon habeas corpus until he had served so much of the sentence as was legally imposed upon him, and held that it was only the excessive part of the sentence that was void, and that this did not affect the whole sentence or such part as the court had power to impose.

III. Effect of application for habeas corpus.

a. Sentence void, prisoner discharged. In some cases the sentence has been declared absolutely void, and the prisoner has been discharged from custody upon habeas corpus.

In Re Johnson, 46 Fed. Rep. 477, 481, it was contended that if the court found that the sentence was erroneous the prisoner might be held for a new sentence in the district court, but the court held that an erroneous sentence, after it has been partly executed, cannot be revised and a new sentence imposed, even at the same term of court, and relied upon Ex parte Lange, 18 Wall. 163, 21 L. ed. 872. In this case the court discharged the prisoner upon habeas corpus, on the ground that the court exceeded its authority in sentencing him to simple imprisonment when the sentence should have been to hard labor. This decision seems to be overruled by United States v. Pridgeon, infra, III. c.

In Kirby v. State, 62 Ala. 53, 57, the applicant for a writ of mandamus, convicted of lar

Ex parte Gibson, 31 Cal. 619, 91 Am. Dec. 546.

Embezzlement was the subject-matter of the offense, and the court had jurisdiction over that offense. Hunt v. Hunt, 72 N. Y. 229, 28 Am. Rep. 129; Sweet v. Merry, 109 N. Y. 94; Ayers v. Russell, 50 Hun, 298; Jacobson v. Miller, 41 Mich. 93.

If this judgment and sentence is excessive it is the excess only that is void. The judg ment still remains valid, to the extent authorized by law.

Brown, Jurisdiction of Courts, § 106, pp. 288, 289; Pe Sweatman, 1 Cow. 144; People, Tweed, v. Liscomb, 60 N. Y. 559, 19 Am. Rep. 211; People, Woolf, v. Jacobs, 66 N. Y. S; People, Trainor, v. Baker, 89 N. Y. 461; Shepherd v. People, 25 N. Y. 406; Ratzky v. People, 29 N. Y. 125; McKee v. People, 32 N. Y. 239; People, Devoe, v. Kelly, 97 N. Y. 212; Ex parte Bigelow, 113 ceny of merchandise, was found guilty of petit larceny and fined $500, and in default of payment was sentenced to hard labor for the county under directions of the county commissioner, for the period of one hundred and forty days in satisfaction of the fine, and for an additional period of five hundred and forty days at fifteen cents per day in satisfaction of the costs of the suit, and also in satisfaction of the value of the goods stolen. The applicant was discharged as the sentence was illegal and not warranted. In that case it was expressly shown that the commissioners had not established any system of hard labor, and the court expressly pointed out that he could not be indefinitely held by the sheriff until such time as the commissioners had established a system of hard labor, and that imprisonment in jail could not be substituted for the same.

In Ex parte Montgomery, 79 Ala. 275, the city council by writ of certiorari petitioned to review the proceedings of the judge of the probate court in discharging the prisoner from the custody of the municipal authorities on habeas corpus. The prisoner had been convicted of larceny and sentenced to pay a fine of $100 and the costs of the prosecution, and in addition was sentenced to six months' hard labor for the city, and in default of payment of fine and costs he was sentenced to hard labor for the city for -days under the city ordinance, as violations of the laws were punishable by fine or imprisonment, or by fine and imprisonment, or by hard labor upon the streets or public works of the city or for the city, and the fine was not to exceed $100, and the sentence to imprisonment or hard labor was not to exceed six months. The question was whether, under such ordinance, there could be for one and the same offense a sentence of both a money fine and to The court held there could perform hard labor. not, as the ordinance gave the option of inflicting a money fine or imprisonment, one or both, and it also gave the option of sentencing to hard labor, but it gave no such option when either a money fine or imprisonment had been imposed, except as a means of coercing the payment of the fines and costs, and the prisoner was therefore rightly discharged.

In Ex parte Ah Cha, 40 Cal. 426, the prisoners, indicted for an assault to commit murder, but found guilty of an attempt to commit great bodily injury only, and sentenced to pay a fine of $500 each, and, in default of payment, to