Grieve v. Webb, 29532.

• Decision Date: 24 April 1945
• Docket Number: 29532.
• Citation: 22 Wn.2d 902,158 P.2d 73
• Parties: GRIEVE v. WEBB.
• Court: Washington Supreme Court

158 P.2d 73

22 Wn.2d 902

GRIEVE v. WEBB.

No. 29532.

Supreme Court of Washington

April 24, 1945

Department 2.

Proceedings in the matter of the application of Richard Grieve to be released on habeas corpus from the custody of Bert O. Webb Superintendent of the Washington State Penitentiary. From a judgment denying the petition and dismissing the proceedings petitioner appeals.

Affirmed.

Appeal from Superior Court, Thurston County; D. F. Wright, judge.

H. E Foster, of Seattle, for appellant.

Smith Troy and Hugh A. Dressel, both of Olympia, for respondent.

ROBINSON Justice.

In August, 1944, Richard Grieve filed a petition for a writ of habeas corpus in this court, seeking his discharge from the custody of the superintendent of the Washington State Penitentiary. An order to show cause why the writ should not issue was granted, and made returnable Before the superior court of Thurston county. In due course, a return was filed in that court, in which the respondent alleged that he held the petitioner in custody by virtue of a judgment and sentence, and a commitment issued pursuant thereto by a judge of the superior court of the state of Washington for Yakima county. Certified copies of these documents were attached to the return and made a part thereof. Respondent prayed that the petition be dismissed, and that he be discharged.

Petitioner filed a motion for judgment, on the ground that the return was insufficient in law to authorize his detention, and raised the same question by a general demurrer. The court heard argument on the motion and demurrer, and, in due course, entered an order and judgment denying the petition and dismissing the proceedings. It is from that order that this appeal is taken.

It is recited, in the introductory portion of the petition, that the 'pretense' for the petitioner's detention is a certain document, 'purporting' to be a warrant of commitment issued out of the superior court of the state of Washington for Yakima county, based upon a judgment rendered by that court in March, 1939, following 'an alleged conviction, as the result of a guilty plea, to an Information containing two counts, respectively charging 'Burglary in the Second Degree,' and 'Robbery," and a certified copy of the information and judgment is attached to, and made a part of, the petition. The gist of the petition is found in paragraph VI thereof, which reads as follows: 'That the detention and imprisonment, as aforesaid, is illegal, in this to-wit: That said Information charges two separate and distinct crimes, contrary to the statutes in such cases made and provided, and is, therefore, totally defective and void.'

This case might adequately be disposed of at this point by a few appropriate citations. We think it well, however, to go beyond that, for the following reasons: On nearly every motion calendar of this court, for a number of years, there has appeared one or two applications for writs of habeas corpus by persons confined in the state penitentiary. Almost always, as in the instant case, the petition itself purports to have been prepared by the petitioner. Yet, it is unmistakably evident that almost all have been prepared by, or with the assistance of, a lawyer, or, perhaps, some exlawyer or lawyers temporarily detained in that institution and who therefore, presumably do not have access to an adequate law library. We think that it will work to the advantage of all concerned if it be made clear to these unnamed and unknown advocates that, in the courts of this state the writ of habeas corpus cannot be used as a medium to review trial errors, but that its authorized use is limited by law to those cases where it appears that the judgment and sentence, by virtue of which the petitioner is held in confinement is void on its face.

The writ of habeas corpus existed at common law prior to the promulgation of Magna Charta. There are several of Magna Charta. There are several distinct species of that writ, of which the ad subjiciendum, which is the appropriate remedy for one illegally deprived of his liberty. It has been held to be the remedy referred to when the term 'habeas corpus' appears in the constitution of the United States, and in the constitutions of the states. When the return to the order to show cause why the writ should not issue pleads that the petitioner is held under a commitment issued pursuant to a judgment of a court of general jurisdiction, the authorized scope of the inquiry, unless it has been broadened by statute, is very limited. Literally, there is but one question presented to the court for decision, and that is,--Is this a judgment or a nullity? Moreover, that question is to be resolved by an examination of the judgment pleaded only, and not by opening up the record or by the taking of testimony. The function of the court in such a situation, in the absence of a statute giving it greater authority, was early decided by the supreme court of the United States in Ex parte Watkins, 28 U.S. 193, 201, 3 Pet. 193, 7 L.Ed. 650, a case decided in 1830. The opinion deserves somewhat extensive quotation:

'Marshall, Ch. J., delivered the opinion of the court.--This is a petition for a writ of habeas corpus to bring the body of Tobias Watkins Before this court, for the purpose of inquiring into the legality of his confinement in jail. The petition states that he is detained in prison, by virtue of a judgment of the circuit court of the United States, for the county of Washington, in the district of Columbia, rendered in a criminal prosecution carried on against him in that court. A copy of the indictment and judgment is annexed to the petition, and the motion is founded on the allegation, that the indictment charges no offence for which the prisoner was punishable in that court, or of which that court could take cognisance; and consequently, that the proceedings are coram non judice, and totally void.

'* * *

'No law of the United States prescribes the cases in which this great writ shall be issued, nor the power of the court over the party brought up by it. The term is used in the constitution, as one which was well understood; and the judiciary act authorizes this court, and all the courts of the United States, and the judges thereof, to issue the writ 'for the purpose of inquiring into the cause of commitment.' This general reference to a power which we are required to exercise, without any precise definition of that power, imposes on us the necessity of making some inquiries into its use, according to that law which is in a considerable degree incorporated into our own.

'* * *

'Can the court, upon this writ, look lood beyond

'Can the court, upon this writ, look beyond charges on which it was rendered? A judgment, in its nature, concludes the subject on which it is rendered, and pronounces the law of the case. The judgment of a court of record, whose jurisdiction is final, is as conclusive on all the world as the judgment of this court would be. It is as conclusive on this court, as it is on other courts. It puts an end to inquiry concerning the fact, by deciding it.

'* * * An imprisonment under a judgment cannot be unlawful, unless that judgment be an absolute nullity; and it is not a nullity, if the court has general jurisdiction of the subject, although it should be erroneous. The circuit court, for the district of Columbia is a court of record, having general jurisdiction over criminal cases. An offence cognisable in any court, is cognisable in that court. If the offence be punishable by law, that court is competent to inflict the punishment. The judgment of such a tribunal has all the obligation which the judgment of any tribunal can have. To determine whether the offence charged in the indictment be legally punishable or not, is among the most unquestionable of its powers and duties. The decision of this question is the exercise of jurisdiction, whether the judgment be for or against the prisoner. The judgment is equally binding in the one case and in the other; and must remain in full force, unless reversed regularly by a superior court, capable of reversing it.

'If this judgment be obligatory, no court can look behind it. If it be a nullity, the officer who obeys it is guilty of false imprisonment. Would the counsel for the prisoner attempt to maintain this position?'

The scope of the inquiry in the federal courts when an alleged judgment is pleaded in a return to an order to show cause in a habeas corpus proceeding has been considerably extended by statutes enacted since the decision, above quoted, was rendered. See Historical Note, 28 U.S.C.A. § 453. In this state, on the contrary, the narrow common-law scope of the inquiry, as defined by Chief Justice Marshall in Ex parte Watkins, supra, has been rigidly preserved by a positive statute. We quote a portion of a section of chapter 4, Remington's Revised Statutes, p. 239, entitled 'Habeas Corpus':

'§ 1075. No court or judge shall inquire into the legality of any judgment or process whereby the party is in custody, or discharge him when the term of commitment has not expired, in either of the cases following:----

'1. Upon any process issued on any final judgment of a court of competent jurisdiction; * * *.'

There has been no change whatever in the above text since it was originally adopted as part of the territorial laws of 1854. Laws of 1854, p. 213, § 445. Pertinent decisions are found in the territorial reports. We quote from Ex parte Williams, 1 Wash. T. 240:

'Richard Williams, the petitioner, was tried and sentenced for murder in the second degree, in the court below, and no appeal or writ of error having been prosecuted from such judgment, this court is now asked to consider and review the...