In re Graham

43 N.W. 148, 74 Wis. 450, 1889 Wisc. LEXIS 103

• Court: Wisconsin Supreme Court
• Decided: September 24, 1889
• Status: Published

Opinion

Cole, C. J.

The petitioners were charged on an information, in substance, of wilfully and feloniously making an assault upon one Eobert McDonald, and putting him in bodily fear and danger of life, and feloniously robbing him of $200 in money,— such-petitioners being each armed with a dangerous weapon, namely, a loaded revolver, him, the said Eobert McDonald, did wound and strike and rob, etc. The petitioners were convicted of the offense as charged, and Graham ivas sentenced to imprisonment in the state prison for the period of thirteen years, and McDonald, for the period of fourteen jmars. The information was doubtless based upon sec. 4375, E. S., which seems to apply to the offense of which they were charged. The judgments were doubtless intended to be under that section. The section provides that the guilty party “ shall be punished by imprisonment in the state prison, not more than ten years, nor less than three years.” The sentence is in excess of the period fixed by statute, and writs of habeas corpus are applied for upon that ground.

"We deny the writs for the reason that the error in the judgments does not render them void, or the imprisonment under them illegal, in that sense which entitles them to be discharged on a writ of habeas corpus. The judgments are doubtless erroneous, and would be reversed on writ of error. Fitzgerald v. State, 4 Wis. 395; Haney v. State, 5 Wis. 529; Benedict v. State, 12 Wis. 314; Peglow v. State, 12 Wis. 534. But the judgments are not void. State ex rel. Welch v. Sloan, 65 Wis. 647. The court had jurisdiction of the persons, and subject matter or offense, but made a mistake in the judgment. For mere error, no matter how flagrant, the remedy is not by habeas corpus. The law is well settled in this court that on habeas corpus only jurisdictional defects are inquired into. The writ does not raise questions of errors in law or irregularities in the proceedings. In re Crandall, 34 Wis. 177; In re Pierce, 44 Wis. . On the petitions presented the writs would be unavailing if granted. They are therefore denied. In re Semler, 41 Wis. 517; Wright v. Wright, ante, p. 439.

By the Gourt.— Writs denied.