#### Peters *v.*Koepke.

[No. 19,392.

Filed January 4, 1901.]

*Courts.*— Records.—Collateral *Attach.*— Habeas *Corpus.*— Courts *of ' Inferior Jurisdiction.*- The records of a court of inferior and limited jurisdiction are entitled to the same respect and are equally invulnerable to collateral attack as those of courts of general jurisdiction, where it is affirmatively shown that the court had jurisdiction of the subject-matter of the action and of the person of the defendant, *pp. 38, 39.*

*Venue.*— Refusal *to Grant Change of.*— The refusal of a justice of 'the : peace, or other court, to grant a change of venue, when a sufficient affidavit is filed, does not render the subsequent proceedings in the cause void. *p. 39.*

Criminal *Law.*— Jeopardy.—The pendency of a criminal action < against, a defendant, for the same offense, in another court, where jeopardy has not attached, is not available to defeat a prosecution in a court of competent jurisdiction, *p. 39.*

*Same.*— Procuring *Affidavit to Be Filed to Defeat Prosecution.*— Where 1 one who has committed a crime or misdemeanor procures an affidavit to be filed against himself for the purpose of defeating a prosecution already commenced in good faith, or-anticipated, a judgment so procured in such case affords no protection, *p. 39.*

*Same.*— Plea *of Guilty..*— Withdraioal *of Plea.*— When a defendant ■ enters a plea of guilty to a criminal charge he cannot afterwards withdraw it without leave of court, *pp. 39, 40.*

Habeas *Corpus.*— Return.—Criminal *Law.*— A return to a petition for a writ of *habeas corpus*showing that the court had jurisdiction of th'e subject-matter of the action and of the person of the defendant, that the affidavit charging defendant with the misdemeanor -. had been properly filed, and that defendant pleaded guilty to the offense described in it, that the evidence was heard, judgment rendered against him and a mittimus issued upon the judgment was sufficient, -and if the matters stated therein were true the court *36could not inquire into the legality of tlio judgment or process, or discharge the prisoner from custody, *p. 40.*

Habeas Corpus. — *Evidence.*— *Sufficiency.*— *Appeal and Error.*— ■ Where in an appeal from the action of the court in denying a writ of . *habeas corpus*the bill of exceptions does, not state that it contains all of the evidence, the court, cannot determine the question of the sufficiency of the evidence to sustain the finding, *p. 41.*

From the Vanderburgh Circuit Court.

*Affirmed.*

*Andrew J. Glarlc,*for appellant.

*Edgar Durre*and *G. T. Gurry,*for appellee.

Dowling, C. J.

The appellant filed in the Vanderburgh Circuit Court his petition for a writ of *liabeas corpus,*alleging that he was unlawfully restrained of his liberty in the jail of that county by the appellee, who was the -sheriff thereof. The petition further state,d that on January 26, 1900, appellant was charged upon affidavit in the police court of the city of Evansville with having on January'25, •1900, at said county, committed an assault and battery upon one Samuel-J. Smith; that he was arrested upon said charge, and taken before the judge of the said police court; , that for plea to the affidavit he said that he had previously •been.arrested, and had pleaded guilty to a like- charge.for the same offense before a justice of the peace of said county; that he had moved for his discharge from'custody for'the ..reason .that said, police court had no jurisdiction over his person;. that the judge of said court falsely asserted that the appellant' had pleaded guilty to the said -charge' in said pólice courtj" which was denied by the petitioner, who asked that the record of said court be corrected so as to show that lie did --not plead guilty; that said request was refused; that ‘said appellant filed his affidavit for a change of judge, but that his'motion was overruled; that the judge, of'tlie police . pourt, over the objection of the petitioner, proceeded to hear said cause, and assessed a fine of $1,000 against said .petitioner; with the -further penalty of imprisonment in the *37county jail for six months; that, after the adjournment ofj said court, the judge thereof, by telephone, without the ' knowledge or consent of the petitioner, reduced the said fine to'$¿00 with imprisonment for six months.

'It is further stated in the petition, that said petitioner; previous to the Said proceedings, had committed an assault and battery upon the said Samuel J. Smith at Said county;"' that he had been charged with said misdemeanor before one Eben C. Poole, a justice of the peace of said county'; that - he had been arrested for said offense upon a warrant issued ' by said justice, 'and had pleaded guilty to the said charge; that judgment in said cause had been suspended until'the injured person could be brought into court to testify as' to' tlie! character of said assault, and for'the purpose of procuring the attendance of the prosecuting attorney; that the assault and- battery charged in the affidavit beforé the said justice of the peace was the same misdemeanor described in the affidavit filed in said police court. The petition con-" chided with the statement that the imprisonment of the petitioner was illegal for the reason that the judge of the' police court had'no jurisdiction of the person of the' peti-' tioner, and that the judgment and mittimus of said police court in said’ cause were wholly void. ...

The writ was issued, and the sheriff made his return to the same under oath. The return showed that the'appellee'' was the sheriff of said Vanderburgh county, and that as such sheriff he had the said Richard Peters in his custody by virtue 'of a mittimus duly issued by the clerk of' the police court of the' city of Evansville, a copy of which mittimus was made a part of the return; that the said mittimhá was founded upon a judgment rendered against said Peters ’ in the police court of the city of Evansville, Indiana, a coutt -of' competent "jurisdiction; that, at the time of his arraignment on said charge in said police court, the pe'ti- ! tioner, for plea thereto,-said that he was guilty'as charged,' and that he did not deny the jurisdiction of said court in' *38any manner; that, thereupon, after' hearing tile'Evidence, the court fotmd the petitioner guilty, and assessed his punishment at a fine of $500, with imprisonment in the county jail for six months; that said petitioner was imprisoned in said jail upon a mittimus issued in pursuance of the said judgment, and that the period of the confinement of said petitioner, under, said judgment and mittimus, had not expired. . It was also shown by the return that the affidavit charging the petitioner with said assault and battery was filed in said police court before the filing of the affidavit with the said Eben C. Poole, justice of the peace; that the latter affidavit was unlawfully procured to be filed at the instigation of the said petitioner, and for the purpose of defeating the proper prosecution of the petitioner for the said offense. Copies of the affidavit, proceedings, and judgment of the police court were made parts of the return.

Exceptions to the sufficiency of the return were filed by the petitioner, and were overruled. .The return was not further controverted. The court, after hearing the evidence, found against the petitioner that he was not illegally restrained of- his liberty, and it was adjudged that he be remanded to the custody of the'sheriff. The petitioner moved for a rehearing, his motion was overruled, and he excepted. The errors assigned are upon the rulings of the court on appellant’s exceptions, to the return to the' writ of *habeas*corpus, and on the motion for a rehearing, or new trial, . ■ '

The legal sufficiency of several of the grounds relied upon by the appellant for his discharge under the *writ'ofhabeas corpus*may well be questioned. According to the later, and, as we think, the more correct decisions in this State, the records even of a court of inferior and limited jurisdiction, where it is affirmatively shown, upon their face,' that the court had jurisdiction of the subject-matter of the1 action, and of the person of the defendant, are entitled to the same respect and are equally invulnerable to collateral attack as *39those of courts of general jurisdiction. *McLaughlin*v. *Etchison,*127 Ind. 474, 22 Am. St. 658; *Fitch*v. *Byall,*149 Ind. 554; *Harrod*v. *Dismore,*127 Ind. 338; *Jones*v. *Cullen,*142 Ind. 335; VanFleet’s Coll. Att. §526, p. 538. Besides, it is expressly declared in the statute creating the police court of'the city of Evansville that “all its judgments, decrees, orders and proceedings shall have the same force and effect as those of the criminal or circuit courts, except that no judgment shall be a lien on the real estate, otherwise,” etc. §4017 Burns 1894. • ■

The refusal of a justice of the peace, or- other, court, to grant a change of ventie when a sufficient affidavit is filed does not render the subsequent proceedings in the cause void. *Turner*v. *Conkey,*132 Ind. 248, 32 Am. St. 251, overruling *Smelzer*v. *Lockhart,*97 Ind. 315, and *State*v. *Wolever, 127*Ind. 306. See, also, *Barnhart*v. *Davis,*30 Kan. 520, 2 Pac. 633; *City of Ottumwa*v. *Schaub,*52 Iowa 515, 3 N. W. 529.

The pendency of a criminal action against a defendant, for the same offense, in another'court, where jeopardy has not attached, is not available to defeat a prosecution in a court, of competent jurisdiction. *Dutton*v. *State,*5 Ind. 533; *Hardin*v. *State,*22 Ind. 347; *Haase v. State,*8 Ind. App. 488; *State*v. *Osborn,*155 Ind. 385.

Where a person who has committed a crime or misdemeanor procures an affidavit to be filed' against himself, or a suit to be instituted by a friend or attorney, in- the name of the State, for the purpose of defeating a prosecution against him already commenced in good faith, or anticipated, a judgment so procured in such-case affords.no protection to the defendant. *Halloran*v. *State,*80 Ind. 586; *Watkins*v. *State,*68 Ind. 427, 34 Am. Rep. 273; *DeHaven*v. *State,*2 Ind. App. 376; *Commonwealth*v. *Alderman,*4 Mass. 477; *State*v. *Green,*16 Iowa 239; *State v. Lowry,*1 Swan (Tenn.) 34.

If a defendant enters a plea of guilty to a criminal charge, *40he cannot.afterwards withdraw it without the leave of the court';- after such plea no finding is necessary, and the judgment follows the plea. *Griffith*v. *State,*36 Ind. 406; *Conover*v. *State,*86 Ind. 99; *Pattee*v. *State,*109 Ind. 545; *Myers*v. *State,*115 Ind. 554.

The police coilrt of the city of Evansville; like the cofirt. of -a justice of the peace, has no stated terms or hours fof business, but is open and competent to receive complaints and‘to tfy'causes within its jurisdiction' daily, Sundays excepted, at all reasonable hours, when the judge is present. §4019 Burns Supp. 1897, Acts 1895, p. 258.

The returp expressly, and specifically traversed and denied every allegation of the petition which attempted to show that the' restraint of 'the petitioner was illegal; it clearly set forth that the petitioner was held upon process issued on a filial judgment of a'court of competent jurisdiction; and that the. term of his commitment had not expired.' If the matters stated in the return were true, the court could not' inquire "into the- legality of the judgment, or process, or disdhai'ge the petitioner from custody. §1133 Burns 1894. It appeared from, the return that'the-court had jurisdiction of the subject-matter of the action and of the person of the petitioner, -Who was present in court;' that the' affidavit, charging him with the misdemeanor, had 'been properly filed; -that the- petitioner pleaded guilty to the offense described in it; that tlie evidence was heard; that judgment was thereupon rendered against him, and that a mittimuswas issued upon-the judgment. This return was. sufficient.*Halloran*v. *State,*80 Ind. 589; H*olsclaw*v. *State,*114 Ind. 506; *McLaughlin*v. *Etchison,*127 Ind. 474, 22 Am. St. 658; *Smith*v. *Clausmeier,*136 Ind. 105, 43 Am. St. 311; *Anderson*v. *Mitchell,*58 Ind. 592; *Ickes*v. *Kelley,*21 Ind. 72; *Turner*v. *Conkey,*132 Ind. 248, 32 Am. St. 251.

- The second error .assigned is the refusal of the court’ to-grant the petitioner a rehearing. The grounds upon which the rehearing -was claimed were that the finding' of the court *41was contrary to law, and was not sustáined by sufficient evidence. In considering tlie question whether the finding was contrary to law, we cannot look beyond the petition and return. The evidence is not before us. A bill of exceptions is copied in the transcript, but it does not state that it contains all the evidence given in the-cause. ' We find in thé record no reason for holding that the finding was contrary to law, and as the evidence is not set out we are unable to de-' termine the question of its sufficiency to sustain the finding. There being ho available error in the record,'the judgment is affirmed.