I dissent. I think the procedure followed as outlined by the Chief Justice was such a far departure from a fair trial, such a transgression of the constitutional and legal rights guaranteed a defendant, as to amount to depriving him of due process. I do not conceive how any proceeding which denies one a constitutional right can be termed "due process of law"; how an unconstitutional thing or act be said to be "the law of the land."
There has here been entered up and made of record a conviction which this court has said is "all wet", and a sentence *Page 110 imposed which we have said is "all wrong", to stand forever against defendant, and form the basis for future similar proceedings as "habitual criminal", whereas the record is clear that one of the prior convictions pleaded could not in law be an element in fixing a status of habitual criminal. State v.Walsh, 106 Utah 22, 144 P.2d 757.
That a sentence imposed which is excessive may be corrected by habeas corpus proceedings is recognized by many courts, including the Supreme Court of Utah. Lee Lim v. Davis, 75 Utah 245,284 P. 323, 76 A.L.R. 460. Many courts have held that relief from an excessive sentence by habeas corpus does not lie until the term for which one could be held has expired, when habeas corpus will secure release from the excess. But that rule does not afford petitioner here any salvation, because the record still stands showing a commitment for a term of not less than 15 years. Even a release by the Board of Pardons within 15 years would not save the record for Thompson. In truth and in fact he is not now chargeable with being an habitual criminal. I cannot subscribe to such position and perpetrate such injustice. Reason, justice and law require that we would "upset the apple cart" as far as this sentence is concerned and follow the rule announced by this court in the Lee Lim case, supra.
I have no quarrel with the general statement made by the Chief Justice as to the scope of matters examinable on habeas corpus. But we differ on what matters come within the field covered by those general terms. The following matters have been held to be encompassed within the field of jurisdiction as pertains to review by habeas corpus under the due process clause: Where it is made to appear that officials connected with the trial in state courts knowingly procured false testimony or knowingly perpetrated a fraud upon defendant, United States ex rel.Lesser v. People of State of New York, D.C., 34 F. Supp. 730, affirmed United States ex rel. Lesser v. Hunt, D.C.,117 F.2d 30; where commitment based on swift reckless pretence of a trial and petitioner denied a fair trial, petitioner was detained in violation *Page 111 of the federal constitution and habeas corpus lies, Ex parteSharp, D.C., 33 F. Supp. 464; where relator was without money or counsel and failed to perfect an appeal, Adams v. UnitedStates ex rel. McCann, 317 U.S. 269, 605, 63 S.Ct. 236,87 L.Ed. 268, 143 A.L.R. 435, setting aside United States ex rel. McCann v. Adams, 2 Cir., 126 F.2d 744. Where accused was denied benefit of counsel, Alexander v. Johnston, 9 Cir.,137 F. 712; Norris v. Hudspeth, 10 Cir., 114 F.2d 1007; Scott v.Aderbold, 10 Cir., 116 F.2d 797; the constitutional right to be confronted with the witness against him, Burgess v. King, 8 Cir., 130 F.2d 761.
"A motion to vacate judgment and sentence and to withdraw plea of guilty on grounds that defendant was insane and under duress and misrepresentation when he pleaded guilty, was denied assistance of counsel, and was not advised of right to withdraw plea of guilty, and that court erred in imposing sentence less than ten days after the plea, went to the jurisdiction of trial court, and hence could be raised collaterally on habeas corpus in any federal court where the defendant was detained, including court which rendered the judgment. 28 U.S.C.A. § 723a; Federal Rules [in Criminal Cases after Verdict], rule 2, 18 U.S.C.A. [following] § 688." Robinson v. Johnston, 9 Cir.,118 F.2d 998, certiorari denied United States ex rel. Robinson v.Johnston, 314 U.S. 675, 62 S.Ct. 177, 86 L.Ed. 540, rehearing denied 314 U.S. 713, 62 S.Ct. 358, 86 L.Ed. 568, vacated,316 U.S. 649, 62 S.Ct. 1301, 86 L.Ed. 1732.
In determining whether the deprivation of constitutional rights amounts to a denial of "due process of law" the inquiry on habeas corpus is directed to a review of the entire proceedings and not to each separate part and step thereof, and if the total result of the trial as it affects the accused's rights was to deny him the kind of trial the law provides, then it was not due process and habeas corpus lies. Brock v. Hudspeth, 10 Cir.,111 F.2d 447. These are only a few of the matters which have been held reviewable by habeas corpus.
The tendency of the Federal statutes and of Federal decisions has been to extend rather than curtail the scope of the writ of habeas corpus, 28 U.S.C.A. §§ 451-466; Gall v. Brady, D.C.,39 F. Supp. 504, affirmed 4 Cir., *Page 112 125 F.2d 253. It has been held to be available to review convictions on some matters which should have been reviewed by appeal, where appeal was not had and time therefore has passed; Miller v.United States, 6 Cir., 142 F.2d 249, decided April 18, 1944;Stonefield v. Buchanan, 6 Cir., 124 F.2d 23, affirmed Exparte Stonefield, D.C., 36 F. Supp. 453. A habeas corpus proceeding concerns itself solely with jurisdiction of subject matter or of the person of defendant or with preservation of constitutional guarantees to those accused of crime. Leonard v.Hudspeth, 10 Cir., 112 F.2d 121. The limitations upon remedies afforded by habeas corpus should be flexible and readily available to prevent manifest injustice. Huntley v. Schilder, 10 Cir., 125 F.2d 250. Habeas corpus proceeding in character is that of a "civil proceeding" and resort to a writ of habeas corpus is not to inquire into criminal act of which complaint is made, but into right of liberty, and immediate purpose to be served is relief from illegal restraint. Ex parte Billings, D.C., 46 F. Supp. 663, affirmed Billings v. Truesdell, 10 Cir., 135 F.2d 505. See also Benesch v. Underwood, 6 Cir.,132 F.2d 430. Certainly a right not to be compelled to testify against oneself, is in the present state of law, a constitutional right. And an effort to plead in an information a confession claimed to have been made by accused would be held an infringement of that right. So too the right to be secure in name and reputation is fundamental, as against an attempt to plead in an information matters that constitute an invasion thereof. Under the new doctrine of constitutional rights under the due process clause announced by the Supreme Court of the United States inMcNabb v. United States, 318 U.S. 332, 63 S.Ct. 608,87 L.Ed. 819, habeas corpus should lie to correct the manifest injustice and the illegal and erroneous sentence involved in this action.
As to the second contention, the prevailing opinion stresses the fact that the sentence imposed was a correct one in view of the verdict. But that opinion admits that the information on which that verdict was rendered did not charge the offense and status on which such a verdict could be rendered. *Page 113 If it can be upheld at all, it charged at most a simple robbery as the maximum or gravest crime of which defendant could be convicted, and a verdict finding anything more than this was beyond the power of the jury, and beyond the power of the court to impose sentence. If one were charged with involuntary manslaughter and the jury returned a verdict of guilty of first degree murder, would the court have power and authority to impose the death penalty? If one were charged by information only with the crime of fornication and the jury returned a verdict of guilty of rape, could the imposition of a sentence of life imprisonment be justified as valid because it conformed to the verdict? Could such things be called "due process of law" and must the accused suffer the penalty because it cannot be reached by habeas corpus? That seems the acme of strictness in application of rules of law.
MOFFAT, J., deceased. *Page 114