[339]*339Draper, J.
On July 14, 1938, Roy Grigsby, the appellee, was indicted for murder in the first degree in Clay County, Indiana. On his plea of guilty entered the same day he was adjudged guilty as charged and sentenced to the Indiana State Prison for the rest of his natural life.
On September 16, 1948, he filed a petition for writ of habeas corpus in the United States District Court for the Northern District of Indiana. The matter was there heard on September 12, 1949. It resulted in the discharge of appellee from the custody of the warden on September 23, 1949.
On September 22, 1949, a warrant was issued out of the Clay Circuit Court on the basis of the original indictment for murder in the first degree. By virtue thereof, the appellee was arrested by the Sheriff of Clay County on September 23, 1949, and incarcerated in the county jail of Clay County.
On September 27, 1949, he filed his petition for writ of habeas corpus in the Clay Circuit Court, and such proceedings were thereafter had that on the 9th day of January, 1950, judgment was entered in favor of the appellee and he was released from custody. From that judgment the sheriff appeals.
In substance the petition for writ of habeas corpus filed in the Clay Circuit Court alleges: That petitioner was indicted for murder in 1938. He was arraigned and entered a plea of guilty and was sentenced to the Indiana State Prison for the rest of his natural life. That said judgment has never been set aside by any duly elected Judge of the Clay Circuit Court, nor has said judgment been reversed by the Supreme Court of Indiana, and that said judgment is still in full force and effect; that to the best of petitioner’s knowledge he was arrested on September 23, 1949, by the sheriff of Clay County, under the color of and upon a [340]*340pretended warrant issued out of the Clay Circuit Court in 1949, pursuant to the indictment upon which he had previously been convicted and that the resulting incarceration was illegal.
Appellant’s motion to quash was overruled.
The appellant thereupon filed return and answer, the pertinent part of which reads in substance as follows: That petitioner was indicted for the crime of murder by a jury, and that a warrant was issued on such indictment. That petitioner was arraigned, pleaded guilty, sentenced to life imprisonment, and was committed to the Indiana State Prison. That he filed a writ of habeas corpus in the United States District Court for the Northern District of Indiana alleging he was unlawfully held pursuant to a void judgment. That upon hearing of said petition the judgment of the Clay Circuit Court was set aside and petitioner ordered released from custody. That a bench warrant was later issued on the basis of the original indictment, and that petitioner is being held to await trial on such indictment.
The court sustained appellee’s exceptions to the return and answer.
Exhibited with the return and answer are copies of the indictment; the original warrant and return; the original judgment and commitment; the petition filed in the United States District Court; the memorandum opinion and order of that court; the warrant issued for appellee’s arrest in 1949 and the sheriff’s return thereto.
When the allegations in a pleading vary from the provisions of the instrument upon which it is founded, the exhibit itself is controlling and must be looked to rather than to the allegations made concerning it. 1 Lowe’s Rev., Works’ Indiana [341]*341Practice, § 12.75; Flanagan on Ind. Pldg. & Procedure, § 67, p. 122. Invoking that rule the appellee says the return and answer does not in fact allege that appellee was held pursuant to a void judgment, nor does it allege that the District Court vacated and set aside the judgment of the Clay Circuit Court.
The petition filed in the United States District Court alleged, “for cause of action arising under the Fourteenth Amendment of the Constitution and laws of the United States of America,” that appellee’s imprisonment was unlawful and violative of the “due process” and “equal protection” clauses of the United States Constitution by reason of the fact, among others, that he entered his plea of guilty without benefit of counsel and without being advised concerning his right thereto. The petition did not allege in terms that the appellee was being unlawfully held pursuant to a void judgment of the Clay Circuit Court, but it did allege facts which, if true, would make it clear that the appellee pleaded guilty and was convicted under circumstances which withheld the substance of a fair trial and constituted a denial of justice. The District Court interpreted the petition as alleging that the appellee’s conviction and sentence were “void for the reason that the procedure which led to them was contrary to the established concepts of due process of law as guaranteed by the Fourteenth Amendment to the Constitution of the United States.” We likewise so construe it. Otherwise construed, we think the appellee’s petition in the United States District Court would have been insufficient, for the illegality of appellee’s detention depended upon the invalidity of the judgment of the Clay Circuit Court.
[342]*342[341]*341The order of the United States District Court entered on September 19, 1949, reads as follows: “An [342]*342order will be entered discharging the petitioner from the custody of the respondent. To afford the State of Indiana an opportunity to proceed further in the prosecution of the petition, the order will not be entered until September 23, 1949.” The appellee is, therefore, right in his contention that the District Court did not vacate or set aside the judgment of the Clay Circuit Court, and it did not attempt to do so. We, therefore, construe the return and answer as alleging that the petition filed in the United States District Court did allege that the appellee was unlawfully held pursuant to a void judgment; and that it further alleged that the judgment of the United States District Court ordered that the appellee be released from the custody of the warden, but it did not allege that the judgment of the Clay Circuit Court was vacated and set aside by the District Court.
Incidental questions of procedure have been raised by the appellant, and the question of the sufficiency of the appellee’s petition for writ of habeas corpus filed in the Clay Circuit Court has been briefed and argued. However, in view of the result we have reached, we feel it best to decide this case on the issue raised by the appellee’s exceptions to the return and answer, and so the question before us for decision is whether the return and answer shows facts sufficient to justify the further detention of the appellee by the sheriff of Clay County, or in other words, the question for decision is, as stated by the appellee: “Can a prisoner released by the warden of the State Prison upon the order of a Federal District Court in a habeas corpus proceeding be legally re-arrested and held in custody upon a pretended warrant purporting to be based upon the original indictment to which the petitioner pleaded guilty, and upon which he was sentenced, when no proceedings are present in the criminal case setting aside, re[343]*343versing or vacating the judgment, or authorizing the issuance of such a new warrant?”
As heretofore stated, on September 22, 1949, a warrant based on the original indictment was issued.
Free access — add to your briefcase to read the full text and ask questions with AI
[339]*339Draper, J.
On July 14, 1938, Roy Grigsby, the appellee, was indicted for murder in the first degree in Clay County, Indiana. On his plea of guilty entered the same day he was adjudged guilty as charged and sentenced to the Indiana State Prison for the rest of his natural life.
On September 16, 1948, he filed a petition for writ of habeas corpus in the United States District Court for the Northern District of Indiana. The matter was there heard on September 12, 1949. It resulted in the discharge of appellee from the custody of the warden on September 23, 1949.
On September 22, 1949, a warrant was issued out of the Clay Circuit Court on the basis of the original indictment for murder in the first degree. By virtue thereof, the appellee was arrested by the Sheriff of Clay County on September 23, 1949, and incarcerated in the county jail of Clay County.
On September 27, 1949, he filed his petition for writ of habeas corpus in the Clay Circuit Court, and such proceedings were thereafter had that on the 9th day of January, 1950, judgment was entered in favor of the appellee and he was released from custody. From that judgment the sheriff appeals.
In substance the petition for writ of habeas corpus filed in the Clay Circuit Court alleges: That petitioner was indicted for murder in 1938. He was arraigned and entered a plea of guilty and was sentenced to the Indiana State Prison for the rest of his natural life. That said judgment has never been set aside by any duly elected Judge of the Clay Circuit Court, nor has said judgment been reversed by the Supreme Court of Indiana, and that said judgment is still in full force and effect; that to the best of petitioner’s knowledge he was arrested on September 23, 1949, by the sheriff of Clay County, under the color of and upon a [340]*340pretended warrant issued out of the Clay Circuit Court in 1949, pursuant to the indictment upon which he had previously been convicted and that the resulting incarceration was illegal.
Appellant’s motion to quash was overruled.
The appellant thereupon filed return and answer, the pertinent part of which reads in substance as follows: That petitioner was indicted for the crime of murder by a jury, and that a warrant was issued on such indictment. That petitioner was arraigned, pleaded guilty, sentenced to life imprisonment, and was committed to the Indiana State Prison. That he filed a writ of habeas corpus in the United States District Court for the Northern District of Indiana alleging he was unlawfully held pursuant to a void judgment. That upon hearing of said petition the judgment of the Clay Circuit Court was set aside and petitioner ordered released from custody. That a bench warrant was later issued on the basis of the original indictment, and that petitioner is being held to await trial on such indictment.
The court sustained appellee’s exceptions to the return and answer.
Exhibited with the return and answer are copies of the indictment; the original warrant and return; the original judgment and commitment; the petition filed in the United States District Court; the memorandum opinion and order of that court; the warrant issued for appellee’s arrest in 1949 and the sheriff’s return thereto.
When the allegations in a pleading vary from the provisions of the instrument upon which it is founded, the exhibit itself is controlling and must be looked to rather than to the allegations made concerning it. 1 Lowe’s Rev., Works’ Indiana [341]*341Practice, § 12.75; Flanagan on Ind. Pldg. & Procedure, § 67, p. 122. Invoking that rule the appellee says the return and answer does not in fact allege that appellee was held pursuant to a void judgment, nor does it allege that the District Court vacated and set aside the judgment of the Clay Circuit Court.
The petition filed in the United States District Court alleged, “for cause of action arising under the Fourteenth Amendment of the Constitution and laws of the United States of America,” that appellee’s imprisonment was unlawful and violative of the “due process” and “equal protection” clauses of the United States Constitution by reason of the fact, among others, that he entered his plea of guilty without benefit of counsel and without being advised concerning his right thereto. The petition did not allege in terms that the appellee was being unlawfully held pursuant to a void judgment of the Clay Circuit Court, but it did allege facts which, if true, would make it clear that the appellee pleaded guilty and was convicted under circumstances which withheld the substance of a fair trial and constituted a denial of justice. The District Court interpreted the petition as alleging that the appellee’s conviction and sentence were “void for the reason that the procedure which led to them was contrary to the established concepts of due process of law as guaranteed by the Fourteenth Amendment to the Constitution of the United States.” We likewise so construe it. Otherwise construed, we think the appellee’s petition in the United States District Court would have been insufficient, for the illegality of appellee’s detention depended upon the invalidity of the judgment of the Clay Circuit Court.
[342]*342[341]*341The order of the United States District Court entered on September 19, 1949, reads as follows: “An [342]*342order will be entered discharging the petitioner from the custody of the respondent. To afford the State of Indiana an opportunity to proceed further in the prosecution of the petition, the order will not be entered until September 23, 1949.” The appellee is, therefore, right in his contention that the District Court did not vacate or set aside the judgment of the Clay Circuit Court, and it did not attempt to do so. We, therefore, construe the return and answer as alleging that the petition filed in the United States District Court did allege that the appellee was unlawfully held pursuant to a void judgment; and that it further alleged that the judgment of the United States District Court ordered that the appellee be released from the custody of the warden, but it did not allege that the judgment of the Clay Circuit Court was vacated and set aside by the District Court.
Incidental questions of procedure have been raised by the appellant, and the question of the sufficiency of the appellee’s petition for writ of habeas corpus filed in the Clay Circuit Court has been briefed and argued. However, in view of the result we have reached, we feel it best to decide this case on the issue raised by the appellee’s exceptions to the return and answer, and so the question before us for decision is whether the return and answer shows facts sufficient to justify the further detention of the appellee by the sheriff of Clay County, or in other words, the question for decision is, as stated by the appellee: “Can a prisoner released by the warden of the State Prison upon the order of a Federal District Court in a habeas corpus proceeding be legally re-arrested and held in custody upon a pretended warrant purporting to be based upon the original indictment to which the petitioner pleaded guilty, and upon which he was sentenced, when no proceedings are present in the criminal case setting aside, re[343]*343versing or vacating the judgment, or authorizing the issuance of such a new warrant?”
As heretofore stated, on September 22, 1949, a warrant based on the original indictment was issued. It was signed by the Clerk of the Clay Circuit Court. The record as presented to us does not disclose whether any order was made directing the issuance of that warrant. The appellee calls our attention to this fact in the “Argument” portion of his brief, but cites no authority or reason for holding the warrant invalid by reason thereof. Any question regarding the validity of the warrant in that respect is, therefore, waived under Rule 2-17.
It has been held in Indiana that a state court has no jurisdiction to examine or review a final judgment of another state court of coordinate jurisdiction regular on its face and so far as state courts are concerned, one’s remedy for the invasion or denial of constitutional rights, state or federal, must be sought in the court in which judgment was rendered or in this court on appeal. Dowd, Warden v. Anderson (1942), 220 Ind. 6, 40 N. E. 2d 658; Haden v. Dowd, Warden (1939), 216 Ind. 281, 23 N. E. 2d 676; State ex rel. Kunkel v. Laporte Circuit Court (1936), 209 Ind. 682, 200 N. E. 614.
But a federal district court does have the right, in habeas corpus proceedings, to investigate the manner in which a court of this state has conducted the trial of a criminal case, and to discharge the petitioner when the requirements of due process have not been satisfied, and justice or a fair trial was thereby denied.1 Mitchell v. Youell (C. C. A. 4th, 1942), 130 F. 2d 880; Jones v. Commonwealth of Kentucky [344]*344(C. C. A. 6th, 1938), 97 F. 2d 335; Johnson v. Zerbst (1938), 304 U. S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019; 146 A. L. R. 357, 403-405, 406-412.
When the allegations of appellee’s petition were established by the evidence in the United States District Court, that court had the right, and it was its duty, to discharge the appellee from the custody of the warden, for the Clay Circuit Court had deprived itself of jurisdiction to proceed to a judgment of conviction against the appellee. State ex rel. Rose v. Hoffman, Judge (1949), 227 Ind. 256, 261, 85 N. E. 2d 486; Knox County Council v. State ex rel. McCormick (1940), 217 Ind. 493, 29 N. E. 2d 405, 130 A. L. R. 1427; Johnson v. Zerbst, supra. We are not called upon to decide whether the District Court could formally vacate and set aside the judgment of the Clay Circuit Court. It did not attempt to do so. It did free the appellee and to do so must have found, as alleged in the appellee’s petition then pending before it, that the judgment of the Clay Circuit Court was void for want of jurisdiction.
An accused is not put in jeopardy by a judgment of conviction which is void for lack of jurisdiction. When discharged thereunder he may again be arrested and prosecuted on the original indictment. Mitchell v. Youell, supra; McCleary v. Hudspeth (C. C. A. 10th, 1941), 124 F. 2d 445; Levine v. Hudspeth (C. C. A. 10th, 1942), 127 F. 2d 982. In Mitchell v. Youell, supra, Mitchell filed a petition for writ of habeas corpus in a federal district court in which he asserted, as did the appellee here, that his conviction and sentence in a state court were had under such circumstances as to amount to a denial of due process of law in violation of the 14th amendment to the Constitution of the United States. The evidence disclosed that he had been tried and sentenced for the crime of [345]*345burglary without benefit of counsel, under circumstances which made the aid of counsel essential to the fair and impartial trial which due process contemplates. The court said:
“Under these circumstances, we do not think that it can be said that the petitioner has been accorded due process of law as guaranteed by the 14th amendment to the Constitution. While he has had the outward form of a trial, he has been denied the opportunity of having his defense really presented. The trial and sentence of the state court must accordingly be held for naught. Powell v. Alabama, supra; Smith v. O’Grady, supra; Boyd v. O’Grady, supra. This does not mean, however, that petitioner may escape further punishment under the bill of indictment returned against him.' While the conviction and sentence under the bill must be held to be void and the prisoner released from further service of the sentence, he will be subject to arrest and trial under the indictment. The defense of prior jeopardy will not protect him, for in holding that the trial was a nullity, we hold that he has not been in jeopardy under the charge. It is settled that an accused is not put in jeopardy by a void judgment of conviction, and that upon his discharge thereunder he may be again arrested and prosecuted. Bryant v. United States, 8 Cir. 214 F. 51; Ogle v. State, 43 Tex. Cr. R. 219, 63 S. W. 1009, 96 Am. St. Rep. 860 and note at page 870; State v. Bates, 22 Utah 65, 61 P. 905, 83 Am. St. Rep. 768; Marshall v. State, 73 Tex. Cr. R. 531, 166 S. W. 722, L. R. A. 1915A, 526 and note; 16 C. J. p. 258; 22 C. J. S., Criminal Law, § 266, p. 402. In directing the release of the petitioner from the penitentiary, therefore, the court should direct that he be delivered to the officers of the State of Virginia to answer the charge contained in the indictment. Bryant v. United States, supra; In re Bonner, 151 U. S. 242, 14 S. Ct. 323, 38 L. Ed. 149.”
[346]*346[345]*345It would seem strange indeed if a party could in one court successfully assert the invalidity of a judgment [346]*346of conviction, and so obtain his release, and in another court successfully assert that the judgment of conviction is “still in full force and effect” so as to avoid further prosecution of the charge against him.
It is true, as appellee says, that “The record is silent as to any proceedings having ever been taken, filed in, acted upon, or recognized by the trial court, as in anywise affecting the subsistence, continuation and effectiveness of the judgment of conviction and sentence in the original criminal prosecution.” That fact should not present an insuperable barrier to proceeding further on the original indictment in any case. In McCleary v. Hudspeth, supra, one McCleary was convicted, on his plea of guilty, of violating the postal laws in the District Court of the United States for the Western District of Pennsylvania. On an application for writ of habeas corpus filed in the District Court of Kansas which alleged that he was denied the assistance of counsel for his defense in the proceedings in Pennsylvania, the District Court for the District of Kansas ordered that he be discharged from the custody of the warden of the penitentiary in which he was confined and delivered to the United States Marshal for the Western District of Pennsylvania. A bench warrant was accordingly issued on the original indictments and McCleary was returned to jail in Pennsylvania. Thereafter, the District Attorney for the Western District of Pennsylvania filed a motion to vacate the pleas of guilty theretofore entered by the petitioner to the indictments and a rule was entered upon petitioner and his counsel to show cause why the pleas of guilty should not be declared void and vacated. The petitioner agreed and the order was entered vacating the pleas and the judgments theretofore entered. He was thereupon again arraigned and pleaded not guilty [347]*347and upon trial was convicted and sentenced. The procedure adopted there could be followed in such cases in our trial courts. It does not seem to us that, under circumstances like the present, a party could, or would attempt to prevent the vacation of his plea of guilty, but, should he contest the motion to vacate, the court would decide the issue and enter his order accordingly.
If the allegations of the return and answer were true, and by his exceptions thereto the appellee admitted them to be true, it was apparent that the original judgment of the Clay Circuit Court had, at the instance of the appellee, been rendered entirely nugatory by a court having the absolute right so to do. The judgment was void for want of jurisdiction. The substance was gone, but the shadow remained, and the records of the Clay Circuit Court reflected a judgment which was non-existent.
In 31 Am. Jur., Judgments, § 760 at p. 298, the following is said concerning judgments in civil cases: “As to an act or omission rendering the judgment void, it is well settled that even though a void judgment is a nullity and may be ignored by those whose rights are attempted to be affected thereby, a court will not permit such a judgment to encumber the record, but will vacate the ineffectual entry thereof on proper application, although the application is made after the term of the rendition of the judgment. Even the lapse of a period of years does not necessarily preclude relief, which is sometimes declared available regardless of what length of time has intervened since the rendition of the judgment. Laches does not operate to preclude the opening or vacating of a void judgment, for the reason that no amount of acquiescence can make it valid.” No reason is seen why, under the circumstances existing here, it should not apply to criminal cases.
[348]*348The law is not static. “Courts do not exist in a vacuum.”. The expanded authority recently assumed by federal courts under the “due process” elause of the 14th amendment has created new problems for state courts. Rules of procedure must of necessity be flexible enough to meet changing conditions. Courts possess inherent procedural authority, not derived from any statute, Partlow v. State (1924), 195 Ind. 164, 144 N. E. 661, and in this state the power to prescribe rules of practice and procedure has also been conferred by statute. . Burns’ 1946 Replacement, § 2-4718. This court has not hesitated in the past, when confronted with the “possibilities of a miscarriage of justice to the detriment of society” to break new procedural ground. State ex rel. Emmert v. Hamilton Circuit Court (1945), 223 Ind. 418, 61 N. E. 2d 182.
If, upon proper motion and proof in the original criminal case, the situation here existing were made to appear, it would be the duty of the trial court to vacate and set aside the plea of guilty and all other proceedings thereafter had in that case. The appellee could then be arraigned and afforded a full and fair trial on the original indictment.
The court erred in sustaining the appellee’s exceptions to the return and answer. Judgment reversed with instructions to overrule the same.
Gilkison, J., dissents with opinion.