DeHart v. Blande

122 N.E.2d 90, 233 Ind. 659, 1954 Ind. LEXIS 258

• Court: Indiana Supreme Court
• Decided: October 26, 1954
• Docket: No. 29,157
• Status: Published

Opinions

Emmert, J.

This is an appeal from a judgment for the appellee on a petition for a writ of habeas corpus. The facts were stipulated at the hearing, and involve proceedings had in the Criminal Court of Marion County^ Division two (2).

On December 29, 1947, the state filed an affidavit in the trial court charging appellant with armed robbery, being entitled, “The State of Indiana vs. Paúl De Hart,” and numbered 4609Z. On February 11, 1948, in the same court the state filed another affidavit for armed robbery against appellant, charging the same offense, entitled “The State of Indiana vs. Paul De Hart,” and numbered 4644Z. On February 25, 1948, appellant pleaded guilty to this second affidavit, and upon it was sentenced for a determinate period of ten (10) years. This same day, on motion of the state, the first affidavit was dismissed.

Appellant contends that the second affidavit was filed in violation of §9-908, Burns’ 1942 Replacement,¹ since the first affidavit had not been dismissed at that time, and therefore the second affidavit was void for want of jurisdiction under the statute. If this position be conceded for the purpose of this opinion, it still does not follow that appellant should prevail on his petition for the writ of habeas corpus.

The remedy afforded by a petition for a writ of habeas corpus in this sort of case is very limited, for Indiana adheres to the rule that “In determining these questions, we are limited to the court’s intrinsic record, and matters dehors such record are not in issue. Dinkla v. Miles (1934), 206 Ind. 124, 188 N. E. 577; Witte v. Dowd, Warden (1951), 230 Ind. 485, 102 N. E. 2d 630; State ex rel. Eggers v. Branaman (1932), 204 Ind. 238, 183 N. E. 653.” Hams v. Souder (1954), 233 Ind. 287, 119 N. E. 2d 8, 10.

The petition for the writ here is a collateral attack on the judgment of the Criminal Court of Marion County, Division two (2), for want of jurisdiction to enter the particular judgment. It is not a collateral attack upon some other prosecution in the same court, and the intrinsic record we are limited to is the record in the proceedings in which the judgment was entered. If appellant wishes to present his jurisdictional questions arising out of another prosecution he will have to pursue a different remedy.

Judgment affirmed.

Flanagan, C. J., Bobbitt and Draper, JJ., concur.

Gilkison, J., dissents with opinion.

1 . “All public offenses, except treason and murder, may be prosecuted in the circuit or criminal court, by affidavit filed in term time, in all cases except when a prosecution by indictment or affidavit for the same offense is pending at the time of the filing of such affidavit . . .” Section 9-908, Burns’ 1942 Replacement (Acts 1905, ch. 169, §118, p. 584, 1927, ch. 132, §4, p. 411).