The petitioner purports not to contend that the writ of habeas corpus is a writ of error. He announces his position to be that the judgment of the Distinct Court, by virtue of which he is confined, is null and void. If this be correct, the writ lies. The Fifth District Court was a court of competent criminal jurisdiction. It had jurisdiction of the person of the defendant, and of the offense. It had jurisdiction to pronounce the judgment in question. The petitioner is in custody upon a final judgment of a competent court.
The statute of the State upon the subject of habeas corpus has the following provisions: “Sec. 1182. It shall be the duty of such judge [or court before which the petitioner is brought], if the time during which such party may be legally detained in custody has not expired, to remand such party, if it appear that he is detained in custody by virtue of the final judgment or decree of any competent court of criminal jurisdiction, or upon any process issued upon such judgment, or decree, or in cases of contempt of court. Sec. 1183. If it appear upon the return of the writ of habeas corpus, that the prisoner is in custody by virtue of the process from any court in the Territory [State], or judge or officer thereof, such prisoner may be discharged in [any] of the following cases, subject to the restrictions of the last preceding section: . . . . Fourth, when the process^ though proper in form, has been in a case not *387allowed by law,. .... Sixth, where the imprisonment is not authorized by any judgment, order, or decree of any court, nor by any provision of law.” The petitioner relies upon the above laws. His argument may be stated in two points: First, the judgment is void because there never was any trial; second, the court having decided that the evidence was legally insufficient, vhe verdict of the jury contrary to such decision is void, and consequently the judgment.
We will examine the first proposition. The statute declares the common law, and defines what a trial is. Criminal Practice Act: “Sec. 307. The jury being impaneled and sworn, the trial shall proceed in the following order: First, the attorney prosecuting must state the case, and offer the evidence in support of the prosecution; second, the defendant or his counsel may then state-his defense, and offer evidence in support thereof.” Other provisions follow, which are not here material. The petitioner contends that the proceedings in the District Court which resulted in the judgment lacked a vital element of a trial, in that defendant was deprived of testifying or producing witnesses in his own behalf, and that therefore there was no trial as contemplated by law, and consequently no verdict or judgment. The defendant was not precluded by the court from making his defense. At the close of the case for the State, defendant offéred no evidence, as allowed by subdivision 2, section 307, supra. He was not obliged to testify or offer witnesses. He submitted his case, as he had the right, upon what he may have considered the weakness or the failure of the prosecution. The practical result of the defendant’s asking the court to instruct the jury to acquit, and the final action of the jury, was that the defendant lost his opportunity to testify and offer witnesses in his behalf.
Again, the petitioner urges that he was- precluded from offering evidence, upon his demand so to do, after the jury had rendered their verdict. There seems, from the bill of exceptions, to have been some misunderstanding between the judge and the defendant’s counsel as to the discharge of the jury — a mis---understanding which, we take occasion to say, was thoroughly honest on each side. The judge understood counsel to consent to the discharge. Counsel claims that he objected, however, in these words, “I have.” This is not a good objection. (Sea *388City of Helena v. Albertose, 8 Mont. 499.) This court, however, is bound by the recollection of the judge below, who certifies the bill of exceptions, unless the same be amended as-provided by section 328, Criminal Practice Act, and section 291, Code of Civil Procedure. (Hale v. Park Ditch Co. 2 Mont. 498.)
It is clear that defendant’s demand to introduce his testimony was subsequent to the discharge of the jury. Whe.n the verdict is rendered and recorded, and the jury discharged, the jury is functus officio. Prior to that time the verdict is in the control of the jury, in some respects. After those events the province of the jury is exhausted. The verdict cannot then be changed in substance. This view does not conflict with the power of the court to amend a verdict as to informalities. (Walters v. Junkins, 16 Serg. & R. 414; McConnell v. Linton, 4 Watts, 357; Bishop v. Mugler, 33 Kan. 145; Root v. Sherwood, 6 Johns. 68; Settle v. Alison, 8 Ga. 201; State v. Waterman, 1 Nev. 551; Snell v. Bangor Navigation Co. 30 Me. 337.)
If the verdict-, when once the record of the court, cannot be changed in substance or materiality, then, a fortiori, a verdict cannot be ignored, and the jury allowed to reopen the case, and hear further testimony, which a party did not choose to present on the trial at the time when he had opportunity so to do. To countenance such a practice would be to allow every party in an action, criminal or civil, to submit his case on what he might deem his chances of success, and, if the verdict was not to his liking, come back with further evidence. We are of opinion that petitioner did have a trial. We cannot on this hearing inquire what irregularities or errors occurred thereat.
As to petitioner’s second point, that the verdict is null and void because contrary to the decision of the trial court that the evidence was insufficient-, it is tantamount to the assertion that the verdict and the consequent judgment are void because the verdict is contrary to the evidence and instructions of the court. The remedy for such alleged error is a motion for a new trial. This court, on habeas corpus, cannot inquire into such matters. If it could, the writ of habeas corpus would perform all the functions of appeal, writ of error, motion for a new trial, and certiorari. Such is not the practice.
The propositions presented in this application are by no means *389new. There is a rich and abundant legal literature upon the subject. We refer to a few of the cases sustaining our views: Ex parte Toney, 11 Mo. 662; Ex parte Winston, 9 Nev. 71; Ex parte Lange, 18 Wall. 163; Ex parte Reed, 100 U. S. 13; Ex parte Siebold, 100 U. S. 371; Ex parte Gibson, 31 Cal. 620; Petition of Semler, 41 Wis. 517; Ex parte Watkins, 3 Peters, 193; Ex parte Parks, 93 U. S. 18; Ex parte Wilson, 114 U. S. 417; Ex parte Yarbrough, 110 U. S. 651; Ex parte Fuller, 19 Tex. App. 241; Ex parte Granice, 51 Cal. 375; Ex parte Fisher, 6 Nev. 309; State v. Glenn, 54 Md. 572; Church on Habeas Corpus, ch. 25.
The petitioner is remanded.
Blake, C. J., and Habwood, J., concur.