Mr. Justice Hall
delivered the opinion of the Court.
Plaintiff in error was defendant below.
The record discloses that on February 15, 1955, with leave of court, an information, properly verified, was filed in the trial court charging that the defendant and one Trujillo “did make an assault upon one Mrs. Claire Onofrio * * * with the intent * * * to rob * *
This charge is not designated by any number, and across the whole of it appear crossed lines in pencil; how, by whom or when this tampering with the information occurred is not disclosed by the record.
In a “SECOND COUNT” it is charged that defendant and Trujillo “did * * * conspire * * * to do * * * an unlawful act, to-wit, a felony against Mrs. Claire Onofrio which felony was the crime of Assault with Intent to Commit Robbery. * *
Through the above underlined words is a heavy line in ink which nearly obliterates the words; the record does disclose that this tampering was consummated on April 13, 1955, pursuant to written request of the district attorney, consented to by defendant’s then appointed counsel and ordered by the court. The record discloses no sanction or consent to this mutilation and entire change of the nature of the offense charged by the person who verified the information and;.signed a [129]*129sworn statement “that the offense therein charged was committed of this affiant’s own personal knowledge.”
There also appears in the record a document purporting to be an information charging that the defendant “did make an assault * * * and * * * did rob, seize, steal, take and carry away THIRTY THREE DOLLARS * * * of the said Mrs. Claire Onofrio.”
This document is signed by the district attorney, bears no date, is unverified, bears no filing stamp of the court, bears no authorization of the court for filing or order fixing bond; the names of no witnesses are endorsed thereon. How or when this vagrant information became a part of the record in this case is undisclosed.
Trial before a jury was completed on April 15, 1955. The court instructed the jury that:
“The first count * * * charges that * * * Mendez did make an assault * * * and * * * did rob, seize, steal, take and carry away Thirty-three Dollars * * *.
“The second count * * * charges that * * * Mendez and * * * Trujillo did * * * conspire * * * to do * * * an unlawful act * * * a felony * * * which felony was the crime of robbery * *
The jury found the defendant guilty of:
1. Robbery as charged in the first count.
2. Conspiracy to commit robbery as charged in the second count.
On May 19, 1955, further proceedings were had and in open court sentence was imposed.
“It is the judgment and sentence * * * to the State Penitentiary * * * to be kept * * * at hard labor on your conviction of assault with intent to commit robbery * * * not less than seven nor more than ten years.
“It is the further judgment and sentence * * * to the State Penitentiary * * * to be kept * * * at hard labor, on your conviction of conspiracy to commit robbery
* * * not less than seven nor more than ten years, both sentences to run concurrently. That is all.”
On the same day, the record and proceedings being in [130]*130a state of confusion and flux as outlined above, understandably, and compounding the confusion, the clerk of the court issued a mittimus whereby and pursuant to the authority therein granted the defendant was conveyed with all convenient speed to the state penitentiary and gained admittance thereto. The mittimus stated that the defendant had been convicted of “the crime of Assault to Commit Robbery and Conspiracy to Commit Assault with Intent to'Commit Robbery. (2 counts).”
On January 24, 1958, the defendant, appearing pro se, filed his petition in the district court for a writ of habeas corpus, seeking his release from the penitentiary. His claim for release is predicated on the undisputed fact that he was only nineteen years of age at the time of the commission of the alleged offenses; that he had been charged with, convicted of, and sentenced for the offenses of (a) assault with intent to commit robbery, and (b) conspiracy to commit assault with intent to commit robbery, and that the mittimus whereby he was restrained of his liberty stated that he had been convicted of the above charges and that by reason of his minority he could not be sentenced to the penitentiary. The court, on February 14, 1958, entered its final order disposing of the habeas corpus proceedings, using the following language:
“At this day come Bert M. Keating, District Attorney, who prosecutes the pleas of the People in this behalf, and the said ELIAS MENDEZ is brought into Court, and by Isaac Mellman, his attorney, also comes.
“And thereupon, this cause comes on to be heard upon the issues joined by the petition, the writ of habeas corpus, and the answer thereto, the same is argued by counsel, and the Court being now sufficiently advised in the premises, doth deny said petition and doth rule that the sentence of the defendant, Elias Mendez, was erroneous — not void and doth order that the portion on Count One of the Information dated May 19, 1955 he set aside [131]*131and held for naught and the Writ of Habeas Corpus quashed. [Emphasis supplied.]
“And thereupon, it is ordered by the Court that the defendant Elias Mendez be removed to the County Jail, then to the State Penitentiary at Canon City, Colorado for a sentence of not less than seven (7) years nor more than ten (10) years on conviction of robbery, this sentence to be Nunc Pro Tunc as of May 19, 1955 and the time spent shall be applied thereon.
“It is further ordered that the Mittimus be corrected to comply with the Sentence.”
On February 19, 1958, another mittimus was issued wherein it is recited that the defendant had been convicted of the crime of “Robbery” and pursuant to which defendant is now confined in the penitentiary. The defendant, through his present counsel, seeks review by writ of error of the order of re-sentence and quashing the writ of habeas corpus, setting forth numerous alleged errors which accrued during the period from the filing of the information until issuance of the remittitur. Numerous glaring errors appear in the record; they are self evident and we consider the record the best and most eloquent evidence thereof.
This court has repeatedly held that habeas corpus cannot be substituted for a review by writ of error. In Urbanich v. Mayberry, 124 Colo. 311, 236 P. (2d) 535, it was said:
“The district court in considering the question as to whether the writ of habeas corpus should be made permanent was limited in its inquiry to determine whether the county court acted in excess of its jurisdiction, since only jurisdictional questions can be reviewed by proceedings in habeas corpus. One who suffers from an order or judgment which is merely erroneous has no remedy by writ of habeas corpus, but must proceed by writ of error. In re Packer, 18 Colo. 525, 33 Pac. 578; Hart v. Best, Warden, 119 Colo. 569, 205 P. (2d) 787. * * *
[132]*132Consequently we do not pass upon the alleged errors in the prosecution.
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Mr. Justice Hall
delivered the opinion of the Court.
Plaintiff in error was defendant below.
The record discloses that on February 15, 1955, with leave of court, an information, properly verified, was filed in the trial court charging that the defendant and one Trujillo “did make an assault upon one Mrs. Claire Onofrio * * * with the intent * * * to rob * *
This charge is not designated by any number, and across the whole of it appear crossed lines in pencil; how, by whom or when this tampering with the information occurred is not disclosed by the record.
In a “SECOND COUNT” it is charged that defendant and Trujillo “did * * * conspire * * * to do * * * an unlawful act, to-wit, a felony against Mrs. Claire Onofrio which felony was the crime of Assault with Intent to Commit Robbery. * *
Through the above underlined words is a heavy line in ink which nearly obliterates the words; the record does disclose that this tampering was consummated on April 13, 1955, pursuant to written request of the district attorney, consented to by defendant’s then appointed counsel and ordered by the court. The record discloses no sanction or consent to this mutilation and entire change of the nature of the offense charged by the person who verified the information and;.signed a [129]*129sworn statement “that the offense therein charged was committed of this affiant’s own personal knowledge.”
There also appears in the record a document purporting to be an information charging that the defendant “did make an assault * * * and * * * did rob, seize, steal, take and carry away THIRTY THREE DOLLARS * * * of the said Mrs. Claire Onofrio.”
This document is signed by the district attorney, bears no date, is unverified, bears no filing stamp of the court, bears no authorization of the court for filing or order fixing bond; the names of no witnesses are endorsed thereon. How or when this vagrant information became a part of the record in this case is undisclosed.
Trial before a jury was completed on April 15, 1955. The court instructed the jury that:
“The first count * * * charges that * * * Mendez did make an assault * * * and * * * did rob, seize, steal, take and carry away Thirty-three Dollars * * *.
“The second count * * * charges that * * * Mendez and * * * Trujillo did * * * conspire * * * to do * * * an unlawful act * * * a felony * * * which felony was the crime of robbery * *
The jury found the defendant guilty of:
1. Robbery as charged in the first count.
2. Conspiracy to commit robbery as charged in the second count.
On May 19, 1955, further proceedings were had and in open court sentence was imposed.
“It is the judgment and sentence * * * to the State Penitentiary * * * to be kept * * * at hard labor on your conviction of assault with intent to commit robbery * * * not less than seven nor more than ten years.
“It is the further judgment and sentence * * * to the State Penitentiary * * * to be kept * * * at hard labor, on your conviction of conspiracy to commit robbery
* * * not less than seven nor more than ten years, both sentences to run concurrently. That is all.”
On the same day, the record and proceedings being in [130]*130a state of confusion and flux as outlined above, understandably, and compounding the confusion, the clerk of the court issued a mittimus whereby and pursuant to the authority therein granted the defendant was conveyed with all convenient speed to the state penitentiary and gained admittance thereto. The mittimus stated that the defendant had been convicted of “the crime of Assault to Commit Robbery and Conspiracy to Commit Assault with Intent to'Commit Robbery. (2 counts).”
On January 24, 1958, the defendant, appearing pro se, filed his petition in the district court for a writ of habeas corpus, seeking his release from the penitentiary. His claim for release is predicated on the undisputed fact that he was only nineteen years of age at the time of the commission of the alleged offenses; that he had been charged with, convicted of, and sentenced for the offenses of (a) assault with intent to commit robbery, and (b) conspiracy to commit assault with intent to commit robbery, and that the mittimus whereby he was restrained of his liberty stated that he had been convicted of the above charges and that by reason of his minority he could not be sentenced to the penitentiary. The court, on February 14, 1958, entered its final order disposing of the habeas corpus proceedings, using the following language:
“At this day come Bert M. Keating, District Attorney, who prosecutes the pleas of the People in this behalf, and the said ELIAS MENDEZ is brought into Court, and by Isaac Mellman, his attorney, also comes.
“And thereupon, this cause comes on to be heard upon the issues joined by the petition, the writ of habeas corpus, and the answer thereto, the same is argued by counsel, and the Court being now sufficiently advised in the premises, doth deny said petition and doth rule that the sentence of the defendant, Elias Mendez, was erroneous — not void and doth order that the portion on Count One of the Information dated May 19, 1955 he set aside [131]*131and held for naught and the Writ of Habeas Corpus quashed. [Emphasis supplied.]
“And thereupon, it is ordered by the Court that the defendant Elias Mendez be removed to the County Jail, then to the State Penitentiary at Canon City, Colorado for a sentence of not less than seven (7) years nor more than ten (10) years on conviction of robbery, this sentence to be Nunc Pro Tunc as of May 19, 1955 and the time spent shall be applied thereon.
“It is further ordered that the Mittimus be corrected to comply with the Sentence.”
On February 19, 1958, another mittimus was issued wherein it is recited that the defendant had been convicted of the crime of “Robbery” and pursuant to which defendant is now confined in the penitentiary. The defendant, through his present counsel, seeks review by writ of error of the order of re-sentence and quashing the writ of habeas corpus, setting forth numerous alleged errors which accrued during the period from the filing of the information until issuance of the remittitur. Numerous glaring errors appear in the record; they are self evident and we consider the record the best and most eloquent evidence thereof.
This court has repeatedly held that habeas corpus cannot be substituted for a review by writ of error. In Urbanich v. Mayberry, 124 Colo. 311, 236 P. (2d) 535, it was said:
“The district court in considering the question as to whether the writ of habeas corpus should be made permanent was limited in its inquiry to determine whether the county court acted in excess of its jurisdiction, since only jurisdictional questions can be reviewed by proceedings in habeas corpus. One who suffers from an order or judgment which is merely erroneous has no remedy by writ of habeas corpus, but must proceed by writ of error. In re Packer, 18 Colo. 525, 33 Pac. 578; Hart v. Best, Warden, 119 Colo. 569, 205 P. (2d) 787. * * *
[132]*132Consequently we do not pass upon the alleged errors in the prosecution. We do, however, wish it to be known that we disapprove of any alterations in or tampering in any manner with court documents without the consent of the person preparing, submitting or signing the same. This is doubly true in criminal matters and doubly, doubly true of a.criminal information made upon oath, it being the inception and very foundation of a criminal prosecution which may lead to the loss of liberty or even life of an accused person.
Turning now to the habeas corpus proceedings, we find from the record that the defendant has been returned to the penitentiary pursuant to a mittimus reciting that he has been convicted of robbery; the jury found the defendant “guilty of robbery as charged in the first count of the information.” Strangely but truly the court in quashing the writ of habeas corpus ordered that: “the portion on Count One of the Information dated May 19, 1955 be set aside and held for naught * * *.” (Emphasis supplied.)
The court told the jury that Count One charged robbery; the jury found the defendant guilty of robbery as charged in Count One. The mittimus and present imprisonment are for robbery on Count One, notwithstanding that Count One has been set aside and held for naught by the trial judge. By that bold'stroke of the trial judge, the verdict of the jury falls; likewise the mittimus, for the reason that there remains no information upon which a conviction can be supported.
The warrant of commitment or mittimus pursuant to which the defendant is being restrained of his liberty can have no greater force or legality than the judgment upon which it is issued. The judgment and sentence of February 14, 1958, is void for lack of an information upon which a conviction can stand; as is the mittimus issued thereon.
“The warrant of commitment depends for its validity and effect on the judgment and sentence of the court on [133]*133which it -is based, as the prisoner is detained, not -by virtue of the warrant of commitment, but on account of the judgment and sentence of the court, a certified copy of which is sufficient evidence of the keeper’s authority, and he need have no other. There must be a sentence or judgment of conviction sufficient to authorize the commitment of accused; and a commitment cannot be properly based on a vacated judgment.” 24 C.J.S. 158, §1607.
The judgment is reversed.
Normally on reversal, we remand the case to the trial court for further proceedings; however, in this case, with knowledge of past proceedings herein and lest there be further confusion, it is hereby ordered that the mittimus issued by the District Court of the City and County of Denver, dated February 19, 1958, whereby the Warden of the State Penitentiary is directed to confine said Elias Mendez in said penitentiary for a period of from seven to ten years, and pursuant to which mittimus said Mendez was, on February 21, 1958, delivered to said warden, as evidenced by his receipt of said date, be declared void as of this date, and the right and authority granted to said warden by said mittimus to keep said Mendez in confinement in the penitentiary shall, on receipt of a copy of this opinion, terminate.
Mr. Chief Justice Knauss and Mr. Justice Doyle dissent.