Ex parte Blystone

• Decision Date: 06 September 1913
• Parties: Ex parte BLYSTONE.
• Court: Washington Supreme Court

134 P. 827

75 Wash. 286

Ex parte BLYSTONE.

Supreme Court of Washington

September 6, 1913

Department 1. Appeal from Superior Court, King County; J. T. Ronald Judge.

Application by O. R. Blystone for writ of habeas corpus. From a judgment denying writ, petitioner appeals. Affirmed.

Walter B. Allen, of Seattle, for appellant.

John F Murphy, Herbert B. Butler, and Reah M. Whitehead, all of Seattle, for respondent.

PARKER J.

In March, 1912, O. R. Blystone having been charged and found guilty of the crime of forgery in the first degree in the superior court for King county, was sentenced by that court to imprisonment in the penitentiary 'for the term of not less than fifteen years nor more than twenty years.' He has since then been held in custody by authority of that judgment and sentence. In December, 1912, he filed his petition in that court seeking a writ of habeas corpus and discharge from custody upon the ground that the judgment and sentence under which he is held in custody is void. The superior court denied the writ and dismissed his application, from which he has appealed to this court.

The contentions of counsel for appellant are rested upon the theory that the judgment and sentence under which he is held in custody is wholly void and of no effect because it is in excess of the power of the court to render in such cases. Appellant, being charged and found guilty of 'forgery in the first degree,' is punishable, as provided by section 2583, Rem. & Bal. Code, 'by imprisonment in the state penitentiary for not more than twenty years.' No minimum term is prescribed by the law relating specifically to forgery. Section 2281, Rem. & Bal. Code, providing for indeterminate sentences, reads: 'Whenever any person shall be convicted of any felony for which no fixed period of confinement is imposed by law, the court shall, in addition to any fine or forfeiture which he may impose, direct that such person be confined in the state penitentiary, or in the Washington state reformatory, as the case may be, for a term not less than the minimum nor greater than the maximum term of imprisonment prescribed by law for the offense of which such person shall be convicted; and where no minimum term of imprisonment is prescribed by law, the court shall fix the same in his discretion at not less than six months nor more than five years; and where no maximum term of imprisonment is prescribed by law, the court shall fix such maximum term of imprisonment.' The italicized words are the ones we are here particularly concerned with.

It is manifest that the court was at least in error in sentencing appellant to a term of 'not less than fifteen years, * * *' since, by the provisions of section 2281, the minimum time of appellant's imprisonment could not lawfully exceed five years; and the fixing of such minimum time beyond that period was unwarranted by law. It is plain that the minimum time for which the court was authorized by section 2281 to sentence appellant has not yet expired, as it is much less than five years since the rendering of the sentence and judgment. We are not now concerned with the question of what relief appellant may be entitled to in a habeas corpus proceeding as against this sentence and judgment after the expiration of five years following the commencement of his imprisonment thereunder. But the question now is: Does the fact that the minimum time of appellant's imprisonment is fixed at a period in excess of five years render the entire judgment and sentence so far void as to entitle him to be discharged from custody upon habeas corpus? It is argued by counsel for the state relying upon our decision in Re Newcomb, 56 Wash. 395, that counsel for appellant is advancing contentions here which involve nothing but questions of error committed by the superior court in the forgery case against appellant, which are not reviewable upon habeas corpus. We are constrained to agree with counsel for the state in so far as appellant's present custody and imprisonment is concerned but do not want to be understood as expressing any opinion as to whether his rights touching his imprisonment under this sentence and judgment after the expiration of five years following its commencement might not be inquired into in a habeas corpus proceeding.

The authorities do not seem to be in harmony upon the question of the absolute invalidity, in its entirety, of an excessive sentence in a criminal case, though where the excessive portion is readily separable from the portion which is authorized by law it seems to be held by the weight of authority, as stated by Justice Jackson, speaking for the court, in United States v. Pridgeon, 153 U.S. 48, 14 S.Ct. 746, 38 L.Ed. 631, as follows: ' In Re Coy, 127 U.S. 757 32 L.Ed. 280, Mr Justice Miller, speaking for the court, said: 'An imprisonment under a judgment cannot be unlawful unless that judgment is an absolute nullity; and it is not a nullity if the court has general jurisdiction of the subject, although it should be erroneous.' Without undertaking to review the authorities in this and other courts, we think the principle is established that, where a court has jurisdiction of the person and of the offense, the imposition of a sentence in excess of what the law permits does not render the legal or authorized portion of the sentence void but only leaves such portion of the sentence as...