State v. Poynter

RICE, C. J.,

Concurring. — The principal question presented by the record relates to the sufficiency of the proof of the former conviction of defendant. The question arose upon an objection to the admission in evidence of a certified copy of the former judgment of conviction, upon the ground that the record offered showed that a plea of guilty had been entered by an attorney and not by the defendant in person.

. I think the judgment was properly admitted. A judgment cannot be collaterally impeached in this manner. It appears that the court had jurisdiction of the person and subject matter, and power to render the particular judgment in question. The inquiry ends at that point. In order for the objection to be good, the judgment must have been, not erroneous, but absolutely void. The court had power to enter judgment of conviction upon a plea of guilty. It therefore necessarily had to determine whether a plea of guilty had in effect been entered. If the court was wrong in its decision, it committed error, and the judgment would be erroneous but not void. Even if it be conceded that under the statute a plea of guilty to a misdemeanor charge must be made by the defendant in person and not by his attorney, the moment it is granted that the defendant could have consented to the plea being made by his attorney, or have ratified the action of his attorney, or in any manner whatever have waived the erroneous entry of his plea, it becomes apparent that the question presented is whether the court erred. No such question can be considered on collateral attack. Such questions can only be considered by an appellate tribunal with power to correct errors, and usually cannot be decided upon the judgment-roll alone. Since the trial court could not properly go behind the judgment of conviction in the former case to determine whether the *515proceedings leading up to it were regular, the question as to whether or not error was committed by the court in entering judgment in the former case is not open for consideration in this court, for we are only reviewing the action of the trial court in admitting the evidence.

I do not think the other errors assigned by appellant justify a reversal. I therefore concur in the affirmance of the judgment.