
    STATE EX REL. FRED KNAPP v. JOHN J. SULLIVAN.
    
    March 25, 1927.
    No. 26,168.
    Writ of habeas corpus quashed.
    Defendant pleaded guilty to a charge of selling liquor to a minor and was sentenced to prison under G. S. 1923, § 3225. The commitment was in accord with the judgment and sentence. Held:
    
    (1) That, upon the facts as stipulated, the writ of habeas corpus was properly quashed by the district court.
    (2) That a statement of his opinion, attached to the commitment by the county attorney, in no manner affected the sentence or qualified the commitment.
    (3) That a writ of habeas corpus does not take the place of an appeal or writ of error.
    Criminal Law, 16 C. J. p. 1329 n. 47; p. 1361 n. 91; p. 1375 n. 15. Habeas Corpus, 29 C. J. p. 19 n. 41; p. 25 n. 4.
    
      Appeal from an order of the district court for Washington county, Stolberg, J., quashing a writ of habeas corpus directed to J. J. Sullivan, warden of the state prison, to secure the release of relator from custody.
    Affirmed.
    
      Daniel F. Foley and John D. Hunan, for relator.
    
      Clifford L. Hilton, Attorney General, and William H. Gurnee, Assistant Attorney General, for respondent.
    
      
      Reported in 213 N. W. 56.
    
   Quinn, J.

Fred Knapp was indicted by the grand jury of Redwood county, charged with having, on the 21st day of April, 1926, feloniously sold, given and furnished a minor of less than 16 years of age intoxicating liquor against the form of the statute in such case made and provided. The accused was duly arraigned upon such indictment, to which he entered a plea of not guilty. Thereafter, he appeared again in open court with his attorney, withdrew his plea of not guilty and entered a plea of guilty to the charge contained in the indictment. Whereupon the court adjudged the accused guilty of the crime charged in the indictment and that, as punishment therefor, he be confined at hard labor in the Minnesota state prison at Stillwater for a term not exceeding one year and six months, and the accused was then remanded to the custody of the sheriff. A commitment in due form, dated April 29, 1926, was issued. Subsequent thereto the county attorney made a statement, in writing, dated April 30, and attached it to the commitment. Pursuant to the mandate of such commitment, the sheriff delivered the accused into the custody of the warden of the prison. On February 14, 1927, the accused, through his present counsel, applied to and procured a writ of habeas corpus from the district court of Washington county. The writ was duly served and the respondent’s return thereto made. Upon hearing before the district court, the writ was quashed and the accused was remanded to the custody of the warden. This appeal followed.

While a writ of habeas corpus cannot be permitted to perform the functions of an appeal or writ of error yet, if the judgment under which one is restrained of his liberty is void, habeas corpus is a proper remedy. No question is raised in the instant case but that tbe court had jurisdiction of tbe subject matter and of tbe person. Tbe vital question is whether tbe court bad authority to render the particular judgment in question. If not, then tbe judgment is fatally defective and tbe commitment is invalid. Tbe proceeding is here for trial de novo. Tbe fact's are stipulated. Tbe matter was submitted upon tbe record, stipulation of facts and tbe argument of counsel and their written briefs.

It is urged that tbe offense to which tbe accused pleaded guilty before tbe Redwood county court was a gross misdemeanor, punishable by confinement in tbe county jail or by fine as provided in G-. S. 1923, § 9923. Tbe charge contained in tbe indictment to which tbe accused pleaded guilty was for selling and furnishing intoxicating liquor to a minor under tbe age of 16 years. Section 3225, subd. (f), Gr. S. 1923, provides that any person who shall sell liquor to anyone under 21 years of age, in violation of this act, shall be guilty of a felony. By section 3200, tbe term “sell” is made to include all barters, gifts and all means of furnishing liquor in violation or evasion of tbe law. Section 9921 provides that whoever is convicted of a felony, for which no other punishment is specially prescribed by statute, shall be punished by imprisonment in tbe state prison or a county jail for not more than seven years, or by a fine of not more than $1,000 or by both.

Tbe indictment charges that tbe accused did “feloniously sell, give, furnish to and provide for one * * * intoxicating liquor,” etc. Tbe use of tbe word “give”, as used in tbe indictment, in no way changed or modified tbe charge. Tbe definition of “sell” given by tbe statute includes gifts and, when so considered, tbe offense charged comes within tbe provisions of subd. (f), § 3225, of tbe statute.

By bis plea of guilty, tbe accused admitted a sale as charged. Tbe trial court accepted tbe plea and thereupon determined and adjudged tbe defendant guilty of selling and furnishing liquor to tbe girl in violation of such statute. We think the' sentence imposed was fully warranted by tbe record. Tbe mere fact that the county attorney attached a statement reciting bis opinion as to certain matters in no way affected the judgment and sentence of the court, nor did it in any manner qualify the commitment.

The opinion in State v. Stock, 169 Minn. 364, 211 N. W. 319, is not in point. There the question under consideration was whether the evidence showed a sale or gift. In the instant case the defendant, by his plea of guilty, admitted the sale and the judgment and commitment are strictly in accordance with the plea and must be sustained as against an attack on habeas corpus proceeding. It is not a case where the sentence is invalid as shown by the record and, for that reason, the holdings in State ex rel. Kelly v. Wolfer, 119 Minn. 368, 138 N. W. 315, 42 L. R. A. (N. S.) 978, and State ex rel. Henderson v. Reed, 138 Minn. 468, 163 N. W. 985, have no application.

A writ of habeas corpus will not take the place of an appeal or writ of error. The appellant had his right of appeal, of which he did not avail himself. He cannot now be heard to say that he was in fact not guilty of the crime to which he pleaded guilty.

Affirmed.  