Selbe v. Hoffman

290 P.2d 1027, 178 Kan. 695, 1955 Kan. LEXIS 342

• Court: Supreme Court of Kansas
• Decided: December 10, 1955
• Docket: 40,026
• Status: Published

Opinion

The opinion of the court was delivered by

Harvey, C. J.:

This is an original proceeding in habeas corpus by an inmate of our state penitentiary against the warden thereof. In his petition for the writ the petitioner alleges, “that he is unlawfully and wrongfully deprived of his liberty by the above named respondent by virtue of a purported commitment issued by the Honorable Albert Faulconer, Judge of the District Court of Cowley County, Kansas, on the 16th day of September, 1953, upon a conviction of first degree burglary.”

It is alleged:

“Petitioner relates to this Honorable Court that the commitment is wrong and unlawful for the following reasons:”

This is followed by 3 alleged errors which occurred in the trial of the case, none of which goes to the jurisdiction of the court.

Orders of the court of this kind cannot be set aside in this manner. Habeas corpus is not a substitute for appeal. See, James v. Amrine, 157 Kan. 397, 140 P. 2d 362, where it is held:

“A proceeding in habeas corpus is not to be regarded as a substitute for appellate review.

“Habeas corpus cannot be used to review nonjurisdictional errors and irregularities leading up to judgment.”

Many other cases to the same effect are collected in 3 Hatchers Kansas Digest (Rev. Ed.), Habeas Corpus, §§ 9, 35.

For later cases see Scott v. Hudspeth, 171 Kan. 320, 232 P. 2d 464, and Current v. Hudspeth, 173 Kan. 694, 250 P. 2d 798.

The result is that the writ prayed for must be denied. It is so ordered.