(dissenting). The petitioner was convicted in the District Court of Cass County of the crime of rape in the first degree. The case was number 8007 of the' criminal docket and the last minute entry of the clerk of court in the ease, under the date of Jan. 7, 1948, notes the return of the .jury into court with a verdict of guilty.
Thereafter the state’s attorney filed an information, under the habitual criminal statute, which charged the petitioner with the “crime of' conviction of three or more felonies prior to his conviction of rape in the first degree.” The filing of this information was 'treated as the institution of a new criminal action which was entered as number 8011 of the criminal docket.' Concerning this case the minutes of the clerk of court, under date of January 16, 1948, show:
“The above entitled action is brought on before the court at this time upon a criminal information filed by State’s Attorney, Ralph F. Croal, charging the defendant with the crime of conviction of three or more felonies prior to his conviction of rape in the first degree on January 7, 1948.
“The defendant appeared in court in the custody .of the. Sheriff and was represented by Atty. Lyle E. Huseby.
“Mr. Croal handed the defendant a copy of the criminal information, he read the information and moved the arraignment of the defendant.
“The defendant informed the court that his true name was Ivan Davidson and he entered a plea of ‘guilty’ and is now sentenced as follows:
“ ‘It is the sentence of this Court, that you, Ivan Wilford Davidson he confined to the State Penitentiary, at Bismarck, North Dakota for life.’ ”
The transcript of the record made upon this arraignment shows the following:
*163“The Court: Mr. Davidson, you are represented here by Mr. Huseby as your counsel. But in view of the nature of the charge, I am going to inform you of the effect of this new and separate charge from the one on which you were convicted on the 7th of January; and you have the right, if you wish it, to stand trial on this charge, ... I also inform you that if these, charges are proved the penalty which can be imposed can be no greater ‘than under the crime for which you were convicted in this county on January 7th of this year.
“Mr. Huseby: Tour honor, I think there are a couple of questions that you can answer which' can ‘ clear úp a number of problems for the defendant. First of all, if the defendant plead guilty to the habitual criminal act, the ’ sentence, — could there be a later sentence on the charge ... of first degree rape.
“The Court: Not if the court has jurisdiction of this proceeding and the penalty imposed is within the provisions of the statute.
“Mr. Huseby: I don’t quite understand.
“The Court: If he admits these charges that are made here and is sentenced upon this information, that precludes a sentence upon the conviction of first degree rape, provided the court has proper jurisdiction of this proceeding and that the sentence imposed is within the limits prescribed by law. In other words, he is sentenced now upon this, if he admits it, rather than upon the rape charge.”
The defendant thereupon pleaded guilty to the information filed in case number 8011 and the Court pronounced sentence. In pronouncing sentence the Court said:
“The passing of sentence in criminal actions has different elements connected with it, one being punishment for the actual offense committed, the other the hope of humanity that by incarcerating people who are guilty of crime they may see the error of their ways and reform. From your record it would appear that your previous confinements have not effected that. . . . The crime of which you were convicted on January -7th was one of the most abhorrent to,society; ... in view of your past record, and in view of that crime there is nothing for me to do but to accept the recommendation of the state’s *164attorney and impose the sentence I am going to impose.” The Court thereupon sentenced the petitioner to life imprisonment.
The judgment of the court was thereafter reduced to writing and signed by the trial judge. It is as follows:
“Now, on this 16th day of January A. D. 1948, the State’s Attorney in and for the County of Cass, State of North Dakota, and the defendant, Ivan Wilford Davidson come into court, and this being the day fixed by the court for the pronouncing of judgment upon conviction of the defendant,' above named, of the crime of conviction of three or more felonies prior to his conviction of rape in the first degree on Jan. 7, 1948, as charged in the information heretofore filed against said defendant, in this court; and the defendant being informed by the court of the nature of the information and of his plea of ‘guilty’ and the verdict, and being asked whether or not he has any legal cause to show why judgment should not be pronounced against him, and none being shown, the court does adjudge, and the sentence of the court is that you, Ivan Wilford Davidson be imprisoned in the Penitentiary, at Bismarck, in said state, for the term of life imprisonment at hard labor commencing at twelve o’clock, noon, of this day, and that you stand committed until the sentence be complied with or until discharged by due process of law.
By the court,
John C. Pollock, Judge
Attest:
Theo. L. Planson,
Clerk.”
The petitioner is now confined in the State Penitentiary upon a commitment issued pursuant to this judgment. He has petitioned for a writ of habeas corpus, alleging that he is imprisoned upon a plea of guilty to a charge which does not constitute a crime. ’ There is no question but that such an allegation of illegal restraint may be inquired into upon a writ of habeas corpus. It is true that upon a writ of- habeas corpus “the investigation must be confined to jurisdictional matters. The jurisdictional inquiry, however, will extend to the power of the court or magistrate to make .the commitment. Jurisdiction to *165make the order is as essential as is jurisdiction of the person and of the subject matter.” State v. Beaverstad, 12 ND 527, 532, 97 NW 548. That a court has no jurisdiction to try an accused upon an information wbicb does not charge an offense and that a judgment of conviction upon such an information is void for want of jurisdiction are well settled propositions. 39 CJS 457; 25 Am Jur 174; Anno: 57 ALR 85; 100 Am St Rep 36.
The editor of the annotation in ALR supra, states at page 87: “The rationale of this doctrine is that in .criminal cases the jurisdiction of the court extends to such matters as the law has declared criminal, and none other; and when a court undertakes to punish for an offense to which no criminality attaches, however reprehensible such offense may be in the forum of conscience, the court acts beyond its jurisdiction. An indictment,information, or written accusation is the very groundwork of the whole superstructure of a prosecution for the commission of an offense. If such an information contains allegations of overt acts or conduct which does not constitute any crime known to the law, or undertakes to state an offense, but the facts stated do not constitute the offense, and no addition to them however full and complete, can supply what is essential, the court is without jurisdiction to put the accused on trial. In such a case the judgment of conviction cannot be corrected. It is-simply void. Imprisonment thereunder is illegal, and the accused is entitled to his release in a habeas corpus proceeding, even though he might secure the same relief upon appeal.”
' It is clear therefore that in this case there are two questions to be decided. First, upon what charge was judgment of conviction pronounced against the petitioner? Second, does the charge, upon which such judgment was pronounced, constitute a criminal offense under the laws of this state?
As I view the record in this case, it shows, beyond any question that judgment of conviction was pronounced against the . petitioner upon an information which charged him with the “crime of conviction of three or more felonies prior to his conviction of rape in the first degree”, and upon that information alone.
The minutes of the clerk of court show that such information was filed and considered to institute case number 8011 of ’ the *166criminal docket. They show that the state’s attorney moved the arraignment of the xcetitioner on that information, that petitioner pleaded guilty to the charge therein stated and that he was sentenced upon it. The minutes of the clerk also show that the last action of the court in case number 8007, the charge of raxoe, was the reception of the verdict of the jury. The written judgment, signed by the judge, states unequivocally, that the crime for which petitioner was sentenced was the “crime of conviction of three, or more felonies prior to his conviction of rmpe in the first degree.”
Furthermore, the transcript of the proceedings uxoon the arraignment of the petitioner upon such information shows that the court informed the petitioner that this was a “new and separate charge” and that “if he admits these charges and is sentenced upon tSiis information, that precludes a sentence upon the conviction of first degree raxoe.”
. ■ The majority of this court, however, by a construction of the language used by the trial judge has been able to reach the conclusion that the trial judge, in pronouncing sentence orally, did something entirely different from what he had clearly stated he proposed to do, from what he thereafter stated in writing that he had done, and from what the minutes of the clerk of court show he did. They say that the language used by the court permits a conclusion that x^etitioner was sentenced upon the charge of raxce as well as upon the charge of being an habitual criminal.
In my oxoinion the oral sentence will not bear such a construction. As I construe the trial judge’s language it is consistent with what he said he proposed to do, with what he thereafter said he had done and with what the minutes of the clerk show he did. It is also inconsistent with any conclusion that at the tinie he sentenced the petitioner for the crime of “conviction of three or more felonies prior to his conviction of rape in the first degree,” he also sentenced him upon the conviction of raxoe in the first degree. It is true that he mentioned that crime in passing sentence, but it is clear that he did so for the .sole purpose of showing that the petitioner was an unregenerate criminal and that when he said, “in view of your past record *167and in view of that crime” he was merely stating matters which he toot into consideration for the purpose of determining the duration of the sentence he would impose upon the plea of guilty to the information in case 8011 which all the records show was the only matter before the court at the timé.
It is apparent upon the' face of this record that both the state’s attorney and the trial judge considered that the information filed under the habitual criminal statute charged a new crime and that the trial judge sentenced the petitioner for that alleged crime. The attorney for the defendant and the defendant, likewise, so understood the proceedings for the trial judge assured them that such was their nature.
Did this information charge a crime"? The habitual criminal statute (Chapter 126, Laws of ND 1927) does’ not create a new crime. It “provides for increased or added punishment for a person who is convicted of a felony in this state where, before the commission of such felony, such person has been convicted two or more times of felonies either in this state or in any other state in the United States.” Ryan v. Nygaard, 70 ND 687, 697, 297 NW 694. “Habitual criminality is a state, not a crime,” and “a judgment of conviction of an accused as an ‘habitual criminal’ is considered null and void.” 24 CJS 1173. Ex parte Wray, 61 Okl Cr 162, 66 P2d 965; State v. King, 18 Wash2d 747, 140 P2d 230; State v. Hensley, 20 Wash2d 95, 145 P2d 1014; State v. Miller, 239 Wis 334, 1 NW2d 178; Ex parte Kuwitzky, 135 Neb 466, 282 NW 396; State v. Collings, 266 Mo 93, 180 SW 866.
Since the information upon which the judgment of conviction was pronounced did not charge a crime, the judgment was void.
The writ of habeas corpus should issue, but since petitioner has never been sentenced upon his conviction of rape in the first degree the Warden of the State Penitentiary should be directed to release petitioner to the custody of the Sheriff of Cass County for sentence in conformity with law.