The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1903-09-12
Dr. lyon 5
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: be absolutely void when IL Is OaSeu upon
+ proceedings had before court having
/ jurisdiction Of the subject matter, juris-
I diction Of the person, and jurisdiction TO
render the particular judgment. Church,
! on habeas corpus, section 800. But IL may
/ be said that the particular place OF con-
fnement is a part of the judgment; and
J so. If the place of confinement Is found
/ to be for any reason erroneous that this
/ would. of itself. render the judgment
and sentence void. But is it true that the
I designation of the particular place of
/ confinement is essentially a part of the
( judgment? Notice the language used in
/ the case of Kingman vs. Kelley re-
/ ported in Is Pac. Rep, page 1913:
THE statement Of the location of the
penitentiary is no necessary part of the
/ sentence. and adds nothing to the effect
/ of the sentence. 1t is probably correct
/ practice to insert it, but such insertion
| binds no one and is of no effect other
than to indicate where the penitentiary is
1 located at the date of the sentence"
This is peculiarly true of sentence upon
conviction in Oklahoma, for the reason
| that our statute fixes the place OF i'm
prisonment for felonies at ''the peniten-
tiary," but does not name any partic-
ular penitentiary The essence of the
matter seems to me to be that. after
trial. and verdict of the jury. one is SEN
| fenced to Imprisonment in a penitentiary
by court of competent jurisdiction and
sentenced for a particular period 10 be
served in a penitentIary. That this ser
vice may be in a penitentiary other than
the one designated by the court or even
possibly in a penitentiary other than the
one designated by a statute, is a matter
of irregularity simply and not a matter
of essence, and it is only the latter sort
/ of questions that can be raised by tho
writ of habeas corpus. l do not mean TO
express the opinion that it is not pos
sible for circumstances to arise by which
the imprisonment of one convicted of
crime in one place of confinement rather
than another would be entirely wrongful
and so entitled the person so imprisoned
to his release; such as when the statute
authorizes confinement in a county Jail
as punishment for certain offenses and
upon conviction of one of those offenses
a person is confined in a penitentiary,
or when statute provides for fine as
punishment for the commission of the
offense and the court attempts to SEN
tence him to imprisonment. Such cases
are to be distinguished from the one here.
in that the court has, in these instances,
no power to render any such judgment.
So that my conclusion is that even if
your removal of the prisoner from one Of
the territorial prisons to another is in
excess of your power II would be consid-
cred simply as an irregularity which the
prisoner could not raise by habeas corpus
Another answer suggests itself from a
portion Of the opinion rendered in the
case of Kingman VS.. Kelley referred TO
above. This entire point can be brought
before you for your consideration by a
quotation from that opinion. page "A:
1T is further urged on behalf of the
petitioner that the state penitentiary can
not be located at Laramie City; that it is
located at Rawlins for ten years by the
constitution. Without stating the vari-
Gus constitutional and statutory provis-
ions necessary to an understanding of
this question. it is sufficient to say that
it is apparent from this record that there
is a state penitentiary in operation at
Laramie, prepared TO receive convicts.
Whether it is a state penitentiary de jure,
and whether there is any other state pen
itentiary of Wyoming in operation and
prepared TO receive convicts, we cannot
in this proceeding properly inquire
The syllabus of the above case also
indicated in somewhat different language,
the point here presented.
Paragraph s. Inquiry will not be made.
on habeas corpus. whether a defacto state
penitentiary, wherein petitioner is impris-
oned, is such de jure.'
The conclusion to be arrived at from
the opinion of the court in the above case
is that if the governor should enter into
a contract for the care and custody of
conviots and a convict should be removed
to such place OF confinement, it would
not matter so far as the prisoner was
concerned whether it was in all respects
a technically legal prison Of the territory
or not. Such being a question which
could only properly be raised by the ter
ritory or some one on its behalf, or the
person or entity with whom the governor
had contract.
But after very careful deliberation. I
have come to the conclusion that your
power as governor Of the territory to re-
move a convict from Lansing, Kansas,
TO any place Of confinement in this terri
tory. for which YOU have contracted. is a
perfectly regular and legitimate proceed
ing. You are authorized to contract for
the care and custody of all convicts under
such terms as you see fit. The terms OF
the various contracts might. since there
are no limitations whatever. provide FOR
the rotation OF Imprisonment two months
in one institution. three months in an
other and a year in a third Such a re-
r7loval would be the removing Of a pris-
oner from one prison 20 another. but. in
asn-Ch as il comes within the contract
power of the governor il would be legal
By being declared insane, convicts do not
lose their character Of convicts: and il
still remains the duty of the governor 70
provide b. contract for the care and Gus
todv Of such couvicts. II. BY the terms
n the contract with an institution suoh
convicts can no longer he retained within
the walls Of that institution. provision
must be made somewhere for their care
and custody when you have contracted
for A second place Of confinement for
convicts. that second place becomes -
much q penitentiary OF the territory q
Oklahoma IS IS now the Kansas state
Penitentisry in no event then. would
there seem 70 be 8 question under the
provisions of section ass1. ~ the statutes
Of 1885. q the power Of the church 70
sentence 10 such additional places Il con
daeueut. al such conricts as might Be