Anderson ex rel. Poe v. Gladden

• Jurisdiction: Oregon
• Parties: B. Richard ANDERSON ex rel. Dupree POE, Appellant, v. Clarence, T. GLADDEN, Warden of the Oregon State Penitentiary, Respondent.
• Citation: 205 Or. 538,288 P.2d 823
• Court: Oregon Supreme Court
• Decision Date: 14 September 1955

Page 823

288 P.2d 823

205 Or. 538

B. Richard ANDERSON ex rel. Dupree POE, Appellant, v. Clarence, T. GLADDEN, Warden of the Oregon State Penitentiary, Respondent.

Supreme Court of Oregon.

Argued and Submitted Sept. 14, 1955.

B. Richard Anderson, Newport, argued the cause and filed a brief for appellant.

Wolf D. von Otterstedt, Asst. Atty. Gen., for Oregon argued the cause for respondent. With him on the brief was Robert Y. Thornton, Atty. Gen., for Oregon.

Before WARNER, C. J., and TOOZE, ROSSMAN, LUSK, BRAND and LATOURETTE, JJ.

BRAND, Justice.

This is an appeal from an order dismissing a habeas corpus proceeding and remanding the plaintiff to the custody of the warden of the penitentiary.

A petition for a writ of habeas corpus was filed in the Circuit Court for Marion County on April 28, 1954, in behalf of the plaintiff Dupree Poe against Clarence T. Gladden as warden of the state penitentiary. The circuit court issued the writ, the defendant filed a return and the plaintiff-appellant filed a reply. The defendant demurred to the plaintiff's reply and the court sustained the demurrer. Upon the refusal of the plaintiff to plead further the court issued an order dismissing the proceeding and the plaintiff appeals.

The defendant warden in the return to the writ, in addition to formal matters, set forth as his authority for the imprisonment a certified copy of the journal entry of sentence in the circuit court of Marion County dated 28 July 1932, which reads as follows:

'Be It Remembered, That at a Regular Term of the Circuit Court of the State of Oregon, for the County of Marion, begun and held at the Court House in the City of Salem in said County and State, on Monday the 5th day of July 1932 the same being the first Tuesday after the first Monday in said month and the time fixed by law for holding a Regular Term of said Court, when were present:

The Hon. L. H. McMahan, Judge Presiding

John H. Carson, District Attorney

U. G. Boyer, Clerk

O. D. Bower, Sheriff

'When, on Thursday the 28th day of July 1932 Judge Fred W. Wilson, presiding, or [sic] the Judicial Day of said term, among other the following proceedings were had, towit:

The State of Oregon

v.

Robert Ripley, Frank

Manning and Dupree Poe

No. 22705

'Now on this 28th day of July, 1932 the above cause coming on before the court this being the time heretofore fixed for the imposition of sentence upon the defendant, Dupree Poe, said defendant having been heretofore found guilty by a jury, upon a plea of not guilty, of the crime of 'MURDER IN THE FIRST DEGREE'. THE STATE of oregon appearIng by john h. cArsoN, District Attorney and by Lyle J. Page, Deputy District Attorney for Marion County, Oregon and the defendant appearing in person and by Paul F. Burris, Francis Fuller and Philmore Huth, his attorneys and the defendant, Dupree Poe, waiving further time for the imposition of sentence and asked the court to pronounce the judgment of sentence upon him at this time and being asked by the court if he had anything to say why sentence should not be pronounced upon him at this time answered showing no good or sufficient reason,

'It is therefore ordered and adjudged by the Court that the defendant Dupree Poe be and he is hereby sentenced to the Oregon State Penitentiary, as prisoner, for the remainder of defendant's natural life.'

In his reply to the return plaintiff admits the official capacity of the warden and admits that plaintiff is in custody pursuant to the judgment order set forth in the return, but he alleges in general terms that the judgment was void 'for the reason that the Circuit Court of the State of Oregon for the Court of Marion did not acquire jurisdiction over the person of the said Dupree Poe, as hereinafter affirmatively set out; * * *.' In his first affirmative reply the plaintiff alleges:

'That during the month of July, 1932, the said Dupree Poe was purportedly tried on a charge of a crime in the Circuit Courtroom of Marion County; that the records on file therein in the custody of the clerk of the County of Marion show that the case was not tried by a court of competent jurisdiction, in that the records show that the Honorable L. H. McMahan, the then duly elected Circuit judge of Marion County, was present, qualified, and able to sit at said purported trial, but that the said Honorable L. H. McMahan did not sit at said purported trial, but that the Honorable Fred W. Wilson, the elected circuit judge for the county of Wasco, of a different judicial district, did in fact preside at said purported trial of the said Dupree Poe; that the Honorable Fred W. Wilson did not have jurisdiction over the person of the said Dupree Poe in that his presence was contrary to the then existing laws of Oregon, more particularly Chapter 277, Oregon Laws 1929, Page 299, and for the further reason that there exists neither record of disqualification of the presiding judge or appointment of the non-district judge'.

Plaintiff bases his case upon the rule that:

'Habeas corpus will lie if the court was without jurisdiction to try the defendant, or when circumstances arise in connection with criminal prosecution which render the judgment void, even though the court had jurisdiction in the narrow sense, over person and subject matter at the inception of proceedings.' Huffman v. Alexander, 197 Or. 283, 251 P.2d 87, headnote 3, 253 P.2d 289.

Such is the law of this state subject to the qualifications stated in Huffman v. Alexander, supra. Plaintiff, however, fails to distinguish between jurisdiction of a court and authority of a judge to sit therein.

The case against Dupree Poe was pending in the Circuit Court of Marion County and the accused was present in that court. The question raised by the first affirmative reply relates merely to the authority of a duly elected and qualified judge of one judicial district of the state to sit in another. Plaintiff's contention upon this issue is wholly without merit for several reasons. We shall mention two.

If Judge Wilson was not a judge de jure when sitting in Marion County, he was at least a judge de facto. He had all of the powers of a circuit judge as bestowed by ORS 3.070 to 3.090, inclusive. He could be called in by the regular judge of the Circuit Court of Marion County if the latter was disqualified, or could be assigned to that court by the Chief Justice under the provisions of Oregon Laws 1929, ch. 277, if the judge was absent, unable to sit or disqualified, and when sitting the presumptions would be in favor of the regularity of his assignment. Under those conditions the regularity of the assignment could not be challenged by collateral attack. A habeas corpus proceeding is a collateral attack. Rust v. Pratt, 157 Or. 505, 72 P.2d 533.

'Where a person is convicted by a judge de facto, though not de jure, and detained in custody in pursuance of his sentence, he cannot be properly discharged upon habeas corpus; the right of such judge to exercise judicial functions cannot be determined on such writ.' Ex parte Ward, 173 U.S. 452, 19 S.Ct. 459, 43 L.Ed. 765 (syllabus).

See, also, State ex rel. Bales v. Bailey, 106 Minn. 138, 118 N.W. 676, 19 L.R.A.,N.S., 775 (habeas corpus); State v. Bednar, 18 N.D. 484, 121 N.W. 614 (appeal); Commonwealth v. DiStasio, 297 Mass. 347, 8 N.E.2d 923, 113 A.L.R. 1133; Sykes v. Sanford, 5 Cir., 150 F.2d 205 (habeas corpus); Gorman v. People, 17 Colo. 596, 31 P. 335; State ex rel. Jugler v. Grover, 102 Utah 459, 132 P.2d 125; In re Ah Lee, D.C., 5 F. 899; State v. Whitney, 7 Or. 386; Annotation 144 A.L.R. 1207.

The wisdom of the rule against collateral attack on the validity of the appointment of Judge Wilson to sit in Marion County is emphasized when we consider that the accused was represented by three attorneys at his trial for first degree murder, and that even now he makes no assertion that he raised or attempted to raise any issue as to the qualifications of Judge Wilson at that trial. It will of course be observed that the 1929 statute was amended in 1933, c. 83, and that the authority of the Chief Justice to assign judges to other judicial districts is no longer restricted to cases in which the regular judge is 'absent unable to sit, or is disqualified' and that such assignments may now be made 'for the more speedy and efficient transaction of the business of the circuit courts'. Thus far we have assumed that Judge Wilson was sitting as a de facto judge only. Such is not the case.

Assuming but not conceding that the first affirmative reply stated only issuable facts and not conclusions of law, it is clearly insufficient. The very recitals of the judgment show that Judge McMahan was present on the fifth day of July, 1932, at the opening of the term. They do not show that he was 'present, qualified and able to sit' on 28 July 1932 when defendant was sentenced. Finally, the plaintiff falsely alleges that 'there exists neither record of disqualification of the presiding judge or appointment of the non-district judge'.

This court is entitled to take knowledge of its own acts and of those of its Chief Justice. 31 C.J.S., Evidence, § 10, p. 515. This proceeding in habeas corpus is in form a civil action distinct from the criminal proceedings wherein the plaintiff here was convicted. But the entire issue in this action pertains to the proceedings in the criminal case and we may in our discretion take judicial notice of our actions in that case. 31 C.J.S., Evidence, § 50 c, p. 623. The files in this court indicate that Judge Wilson accepted an assignment by the Chief Justice to Marion County to try the case in which Dupree Poe was a defendant. We also know the practice prevailing and properly required by which a circuit judge causes his assignment to be filed in the case or entered in the circuit court journal of the court to which he is assigned, to the end that his authority may be shown of record. The files or journal of the circuit court of Marion County will...