The Saint Paul globe., 1897-06-04
MENTS FOR AND AGAINST HIS
RELEASE.
DEFECT YIN THE SENTENCE
ITY Is RTHE BONE OF CON-
TENTION.
And That*if Released His Ultimate
Place VIII Be I'm an Insane
Hospital.

-.
since he was committed to the state
prison at Saltwater last year, was per-
mltted for a few hours to mingle In
With the creatures of the outer world
yesterday, the occasion being the argu-
ment before the supreme court ON the
motion of his attorneys, G. D. and L.
d. O'Brien, for his release from prison
on writ Of habeas corpus.
The prisoner was taken into court at
l0 O'Clock, but it was nearly noon be-
fore the regular calendar was disposed
OF, and his case was then taken up.
After the argument Prison Agent
Whittier returned with him to Still
water.
The argument in favor Of HulPs re-
lease was made by G. .. O'Brien. He
maintained that the sentence of the
court, like an indictment, in order to
be valid. must comply literally with
the statutory form, and that If it
varied from this in any particular it
was void. He read the statute of 1866,
which gives a form of sentence, in
which it uses the words "at hard
labor" and then he read the sentence
of Judge Egan in the Hull case, which
said that J. G. Hull should be SEN
fenced to the state prison subject to
the rules and regulations thereof" +"
This deviation from the statutory form
of 1866, Mr.. .cO'Brien claimed, made the
sentence void, and he argued that his
client should be released from prison
on that account. There was no prece-
dent in Minnesota for a motion of this
kind, but cases and decisions from
Wisconsin and New York were cited
to show that, in the opinion of those
courts, the statutory sentence must be
literally adhered to in order to make
it valid.
Attorney General Childs combatted
Mr.. O'Brien's position. He said:
The sentence was in the following form:
Ihe sentence of the court is that you,
James Z. Hull, be confined and restrained
In the state prison at Saltwater conformatory
to the rules and regulations of that institu-
tlon, in the state of Minnesota for the period
of six years.
The statute contains the following provision
In every case in which punishment in
the state prison is awarded against any con-
Wet, the form of the sentence shall be that
ne be punished by confinement at hard la
bor. Gen. Stat. 1894, section 7402.
Although the sentence does not in express
terms provide in the language of the statute
| that the prisoner shall be punished by con-
hnement at hard labor, it does substantially
and to all intents and purposes comply with
such requirement. Among the rules and regu-
lations prescribed for the treatment of con-
victs confined IN the state prison, are the
following:
Every person convicted of crime and
committed Ito the statestprison shall be regu-
larly employed ait and be compelled to per
/ Iefm Iebn aeVereasonable amount of hard
and no person so committed as
aforesaid shall be exempt from
such hard labor and employment unless on ac-
/ count OF incapacitating sickness or other dis
ability, rendering it impossible that such
labor be performed" Gen. Stat. 1894, section
| 1892.
prison shall in all respects be governed by
the provisions of this chapter, and shall be
conducted as specified in the succeeding sec
| tions thereof. Id. section 1888
| Provision is then made by following sec
| tlons for the employment of convicts at
hard labor under the supervision of the war
| den. The chapter in which the two last
named sections appear is chapter 255, General
! Laws 1889. Section 7402, already cited ap-
pears in General Statutes 1866 chapter lis.
| The sentence clearly contemplates that the
one upon whom it was imposed should he
| subject to the provisions of the law Of 1889.
| The question of hard labor was touched
| upon IN State VS.. West, AZ MINI. 149. The
real question in that case was whether the
| municipal court of Minneapolis had any juris-
diction to try the defendant for the violation
| of an ordinance of the city the punishment
whereof as prescribed by the ordinance was
a fine of $100 and Imprisonment in the work
| house for ninety days.
| This court denied such jurisdiction and
hence ordered the discharge of the prisoner
but the question of the effect of the omission
Of the imposition Of hard labor from the sem
tence was incidentally raised and received
passing remark from the court. The at
| tempt had been made by counsel for the state
to save the jurisdiction by urging that the
| sentence did not include hard labor which
only appeared in the commitment. To that
contention the court expressed itself as fol-
lows:
''The commitment is not subject to critic
ism because under the ordinance hard labor
follows as consequence of the imprisonment
whether mentioned in the sentence or not .
P. 49)
If the court accurately expressed the law
in that case, it would seem to follow that
the omission of an express imposition of
hard labor in the sentence pronounced upon
the petitioner would not operate to vacate the
sentence, as hard labor follows as a necessary
| consequence the imposition of the sentence
under the provisions OF the act of 1889 above
quoted.
Although it may be deemed the law that the
| sentence should in some form include hard
| labor, yet the omission thereof is according
to the weight Of authority, mere irreguIarity
which cannot be reached by habeas corpus
Mr.. Childs argued that the defect
need not invalidate the sentence, al
though it would make it what Hurd in
his work on habeaS corpus, termed O.
divisio deficient sentence, which he
says, "are not hurtful to any right Of
liberty" and, in his opinion, are prop
erly not void. ~
In Minnesota, he cited the case of the
state VS.. Williams, in which it was held
that a sentence for a less term than the
law allowed was merely erroneous,
and not void. The remedy Of the prison
er was an appeal from the Judgment
Habeas corpus would not avail unless
the judgment was wholly void, a legal
nullity A number of other decisions
similar were cited.
Mr.. Childs urged that the weight OF
authority was to the effect that a SEN
tence could not be impeached on
habeas corps if merely erroneous,
the court which gave the wrong judg-
ment having jurisdiction of the per-
son, place and subject matter.
The court took the case under advise
ment.
Warden Wolfer says Hull is far from
being in good health. but that there
has been big Improvement in HIM
He spent two months in the hospital
ordinary prison duties. Now he does odd
jobs about tthe prison yard, and saws
wood when he feels like it, He is quiet
obedient, and willing.
Warden Wolfer says there is no
doubt in his mind that Hull is insane
and that he; has been insane for years.
and may be for years to come Ego
tism is one of the most prominent
features Of his insanity.
II do not say that Mr.. Hull is insane
to the extent of being irresponsible
for his deeds,' said the warden, "but
that he has been insane for a long time
is certain. While his mental condition
has improved at the prison, as his
physical health improved, If he was re-
4A1a In Ill 1,nx L