Huffman v. Smith, 12052.

• Decision Date: 19 January 1949
• Docket Number: No. 12052.,12052.
• Parties: HUFFMAN v. SMITH.
• Court: U.S. Court of Appeals — Ninth Circuit

172 F.2d 129 (1949)

HUFFMAN v. SMITH.

No. 12052.

United States Court of Appeals Ninth Circuit.

January 19, 1949.

William J. Huffman, in pro. per.

Smith Troy, Atty. Gen., State of Washington, and C. John Newlands, Asst. Atty. Gen., for appellee.

Before DENMAN, Chief Judge, and BONE and ORR, Circuit Judges.

DENMAN, Chief Judge.

This is an appeal from an order denying appellant's motion to sue in forma pauperis and, as such suitor, to file a writ of habeas corpus against appellee, Warden of the Washington State Penitentiary. The statute applicable at the time the order was made is § 832, 28 U.S.C., 28 U.S.C.A. § 832, providing

"Suits, and so forth, by poor persons; prepayment of fees and costs. Any citizen of the United States entitled to commence any suit or action, civil or criminal, in any court of the United States, may, upon the order of the court, commence and prosecute or defend to conclusion any suit or action * * * without being required to prepay fees or costs or for the printing of the record in the appellate court or give security therefor, before or after bringing suit or action, or upon * * * appealing, upon filing in said court a statement under oath in writing, that because of his poverty he is unable to pay the costs of said suit or action or * * * appeal, or to give security for the same, and that he believes that he is entitled to the redress he seeks in such suit or action on * * * appeal, and setting forth briefly the nature of his alleged cause of action, or appeal. * * *" (Emphasis supplied.)

The pertinent portion of this statute is in the phrase "entitled to commence any * * * action." If the petition states no cause of action it is long established that the motion to sue in forma pauperis must be denied. Kinney v. Plymouth Rock Squab Co., 236 U.S. 43, 45, 35 S.Ct. 236, 59 L.Ed. 457; Johnson v. Hunter, 10 Cir., 144 F.2d 565, 566.

In the revision of Title 28, the above provision was repealed and § 1915 substituted. It is:

"Proceedings in forma pauperis

"(a) Any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs or security therefor, by a citizen who makes affidavit that he is unable to pay such costs or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant's belief that he is entitled to redress."

We construe the permissive words "may authorize" to give to the district court the same discretion to refuse to permit the commencement of the action, if it appear that the applicant has no cause of action, as in former section 832.

Appellant was convicted and given separate sentences on two counts of an information charging violations of a Washington statute, Rem. Rev. Stats. sec. 6908, as amended by Chapter 158 of the Laws of 1943, providing:

"Every person who, 1st: having any child under the age of sixteen (16) years dependent upon him or her for care, education or support, deserts such child in any manner whatever, with intent to abandon it; 2nd: wilfully omits, without lawful excuse, to furnish necessary food, clothing, shelter, or medical attendance for his or her child or children or ward or wards; 3rd: Having sufficient ability to provide for his wife's support, or who is able to earn the means for such wife's support, who wilfully abandons and leaves his wife in a destitute condition, or who refuses or neglects to provide such wife with necessary food, clothing, shelter, or medical attendance, unless by her misconduct he is justified in abandoning her, shall be guilty of the crime of family desertion or non-support".

The sentences were, first, for a year for the desertion of the wife and, second, for twenty years for desertion of a child. Appellant contends that this statute creates but a single crime and that the two sentences constitute double jeopardy within the prohibition of Article V of the Amendments to the Federal...