
    Department of Public Welfare et al. v. Polsgrove, County Judge.
    (Decided Oct. 3, 1933.)
    
      BAILEY P. WOOTTON, Attorney General, and H. HAMILTON RICE, Assistant Attorney General, for appellants.
    B. T. QUINN for appellee.
   Opinion of the Court by

Judge Richardson

Awarding writ of prohibition.

This is an application by the members of the department of public welfare of Kentucky and the superintendent of the state reformatory, at Frankfort, for a writ of prohibition to prevent the judge of the Franklin county court from discharging, on habeas corpus, Carl Gray, who is confined in the reformatory under an indictment, trial, judgment, and sentence' of the Nelson circuit court.

At the February term, 1932, Gray, Humphrey Lynch, Fred Withers, Daniel Pershing (alias Daniel O’Brien), Robert Davenport, and W. S. Robinson were jointly indicted, accused of “the crime of unlawfully and feloniously entering into a conspiracy with each other to commit the crime of robbery committed, in manner and form as follows, to-wit:

That they ‘ did unlawfully, willfully and feloni-ously enter into a conspiracy with each other, and each with the other to rob the People’s Bank of New Hope, Ky., a Bank, doing a banking business at. New Hope, Ky., and while said conspiracy was in existence and in pursuance of same and in fur-tberan.ce of tbe execution of same, did band themselves together and go forth armed and acting in concert with each other, aiding, abetting and assisting each in pursuance of said conspiracy and did with force and arms and violence put in fear of bodily harm and in fear of his life, one Tom Miller,, the said Tom Miller being the Cashier of the said People’s Bank of New Hope and in actual charge- and in legal custody of the money of said bank,, and did rob from him, with force and arpas, against his will and consent the sum of eleven hundred and. eighty dollars lawful money, legal tender of the-United States, in currency and silver * * * with the felonious and fraudulent intention of converting same to their own use- and permanent. benefit, and permanently depriving the said bank, of its. property therein. * * *’ ”

Gray, without demurring to the indictment, entered, a plea of guilty, and on submission of the prosecution as. to him, a jury, acting under a peremptory instruction, returned a verdict fixing his punishment at six years in the penitentiary. He was formally sentenced, and, under a proper order, committed to the reformatory at Frankfort, where he has since been confined. Humphrey Lynch, a codefendant of Gray, entered a. demurrer to the indictment. It was overruled, and the-prosecution, with the intervention of a jury, proceeded to trial as to him, resulting in a judgment of conviction. He prosecuted an appeal to this court. We deternimed. that the indictment was defective in that it charged a conspiracy to commit robbery in the accusatory-part, and a conspiracy to commit bank robbery in the descriptive portion. The judgment of conviction of' Lynch was reversed, with directions to award him a. new trial.

Gray filed a petition for a writ of habeas corpus, before the county judge of Franklin county, and to prohibit him from granting it, and discharging Gray, this, proceeding for a writ of prohibition was instituted.

It is very clear that the indictment attacked by the petition for a writ of habeas corpus states a public-offense cognizable by the law, though stated defectively,- and, for this reason, demurrable. The insufficiency of the indictment was properly raised by Lynch in the-circuit court, and also in this court, in the manner pre.■scribed by law. To avail himself of the defect or the insufficiency of the indictment, the exclusive remedy ■of Gray was a demurrer in the circuit court, and, in case of an adverse ruling thereon, an appeal to this court. Baldridge v. Com., 88 S. W. 1076, 28 Ky. Law Rep. 33; Cheek v. Com., 162 Ky. 56, 171 S. W. 998; Daniels v. Com., 181 Ky. 365, 205 S. W. 968; Hawks v. Com., 197 Ky. 196, 246 S. W. 116; Rogers v. Com., 188 Ky. 817, 224 S. W. 348; Bailey v. Com., 198 Ky. 629, 244 S. W. 779. A contrary rule obtains where the in■dictment fails to charge an offense known to the law. Morgan v. Com., 202 Ky. 211, 259 S. W. 46; Pierce v. Com., 210 Ky. 465, 276 S. W. 135; English v. Com., 216 Ky. 608, 288 S. W. 320.

The indictment having charged Gray with a public •offense, cognizable by the law, and the circuit court admittedly having jurisdiction of the offense and of the person of Gray, he is not now entitled by a habeas •corpus to inquire into the sufficiency of the indictment •and present technical defects, and thus procure his discharge under the judgment of conviction. Cooley on Constitutional Limitations (4th Ed.) page 424, aptly ■states the universal rule controlling the courts when ■determining the right of one convicted under a judgment of a court to a discharge by a habeas corpus. He ■states:

“Where the party is confined under judicial pro-' cess, is brought up on habeas corpus, the court or judge before whom it is returned will inquire, (1) whether the court or officer issuing the process, under which he is detained, had jurisdiction on issuing such process. If so, mere irregularities or errors of judgment in the exercise of the jurisdiction, must be disregarded on this writ, and must be corrected either by the court issuing the process or in regular appellate proceedings.”

Mr. Cooley’s statement is univerally accepted as the correct one. It has been approved and lollowed by the Supreme Court of the United States and the ■courts of the several states. See In re Coy, 127 U. S. 731, 8 S. Ct. 1263, 32 L. Ed. 274; Harlan v. McGourin, 218 U. S. 442, 31 S. Ct. 44, L. Ed. 1101, 21 Ann. Cas. 849; Ex parte Lennon, 166 U. S. 548, 17 S .Ct. 658, 41 L. Ed. 1110; Bessette v. W. B. Conkey Co., 194 U. S. 324. 24 S. Ct. 665, 48 L. Ed. 997; Fitzgerald v. Green (In re Green), 134 U. S. 377, 10 S. Ct. 586, 33 L. Ed. 951; Glasgow v. Moyer, 225 U. S. 420, 32 S. Ct. 753, 56 L. Ed. 1147; In re Metzger, 5 How. 176, 12 L. Ed. 104; Ex parte Watkins, 3 Pet. 193, 7 L. Ed. 650; In re Swan, 150 U. S. 637, 14 S. Ct. 225, 37 L. Ed. 1207; Frank v. Mangum, 237 U. S. 309, 35 S. Ct. 582, 59 L. Ed. 969; Henry v. Henkel, 235 U. S. 219, 35 S. Ct. 54, 59 L. Ed. 203; Ex parte Parks, 93 U. S. 18, 23 L. Ed. 787; Hallinger v. Davis, 146 U. S. 314, 13 S. Ct. 105, 36 L. Ed. 986; Ex parte Bigelow, 113 U. S. 328, 5 S. Ct. 542, 28 L. Ed. 1005; Knewel v. Egan, 268 U. S. 442, 45 S. Ct. 522, 69 L. Ed. 1036; Ex parte Yarbrough, 110 U. S. 651, 4 S. Ct. 152, 28 L. Ed. 274; In re Clarke, 100 U. S. 399, 25 L. Ed. 715; Goto v. Lane, 265 U. S. 393, 44 S. Ct. 525, 68 L. Ed. 1070; In re Brown, 102 Cal. App. 97, 282 P. 538; Johnson v. State, 99 Fla. 1311, 128 So. 853; Smith v. Hollowell, 209 Iowa, 781, 229 N. W. 191; Ex parte Prock, 46 Okl. Cr. 239, 287 P. 1091; Ex parte Amos, 94 Fla. 1028, 114 So. 760; Hallway v. Byers, 205 Iowa, 936, 218 N. W. 905; Ex parte Stambaugh, 117 Cal. App. 659, 4 P. (2d) 270; Ex parte Lowe, 50 Idaho, 602, 298 P. 940; People ex. rel. Rich v. Lackey, 139 Misc. 42, 248 N. Y. S. 561; D’Allessandro v. Tippins, 101 Fla. 1275, 133 So. 332; Godfree v. Peak, 58 App. D. C. 364, 30 F. (2d) 988; Ex parte King, 41 Okl. Cr. 241, 272 P. 389; Reffkin v. Boyce (Fla.) 139 So. 578. These cases, and many others that might be cited, lay down the rule that the-question of the sufficiency or insufficiency or technical defect of the indictment or information, where a public offense is charged, cannot be determined -on a habeas, corpus proceeding, if it names an offense cognizable by law, and if the court had jurisdiction of the offense- and of the person accused. Knewel v. Egan, 268 U. S. 442, 45 S. Ct. 522, 69 L. Ed. 1036; Ex parte Yarbrough, supra; In re Clarke, supra; In re Coy, supra; Smith v. Hollowell, 209 Iowa, 781, 229 N. W. 191; State v. Rice, 159 Tenn. 473, 19 S. W. (2d) 227. Nor can errors of the-trial court, overruling a motion or a demurrer of the accused, based on defects, or a failure to charge particular facts, in naming or describing the offense, named in the indictment, be inquired into on a habeas corpus,, after he is imprisoned under a sentence imposed on a conviction under such indictment, if the indictment describes an offense, defined by either the statute or •common law. No error of law committed by the trial •court can be reviewed on a writ of babeas corpus. Ex parte Yarbrough, 110 U. S. 651, 4 S. Ct. 152, 28 L. Ed. 274; Goto v. Lane, 265 U. S. 393, 44 S. Ct. 525, 68 L. Ed. 1070. The sole inquiry when determining the right of •one confined tinder a judgment of conviction, on considering a writ of habeas corpus, is whether the indictment describes an offense of the class which the law recognizes and of which the court had jurisdiction. In re Coy, 127 U. S. 731, 8 S. Ct. 1263, 32 L. Ed. 274; Ex parte Prock, 46 Okl. Cr. 239, 287 P. 1091; Nelson v. Foley, 54 S. D. 382, 223 N. W. 323; Dukes v. State, 81 Fla. 247, 88 So. 474. If enough appears in the indictment to charge him with a crime' within the jurisdiction •of the court, it is sufficient to preclude his right to a habeas corpus. Hills v. Pierce, 113 Or. 386, 231 P. 652. All questions as to the sufficiency of the indictment, if it •describes a public offense, are for the trial court subject to be corrected solely by an appeal. Goodman v. Daly, 201 Ind. 332, 165 N. E. 906; Ex parte Cassas, 112 Tex. Cr. R. 100, 13 S. W. (2d) 869; Ex parte Amos, 94 Fla. 1023, 114 So. 760; Hallway v. Byers, 205 Iowa, 936, 218 N. W. 905; People ex rel. Flinn v. Barr, 140 Misc. 422, 251 N. Y. S. 116. A habeas corpus proceeding is a •collateral attack of the judgment under which the pris^ •oner is confined, and will be granted only if the judgment is void. Scott v. Brown, 160 Ark. 489, 254 S. W. 1074.

That these principles entitled the commonwealth to •a writ of prohibition herein is not doubtful. Therefore a writ is awarded, forbidding the judge of the Franklin •county court granting a writ of habeas corpus and discharging Gray,.and for proceedings consistent with this •opinion.  