Ex parte Hammar

• Decision Date: 15 April 1925
• Docket Number: 19136.
• Citation: 134 Wash. 51,234 P. 1018
• Parties: Ex parte HAMMarch
• Court: Washington Supreme Court

234 P. 1018

134 Wash. 51

Ex parte HAMMarch

No. 19136.

Supreme Court of Washington

April 15, 1925

Department 1.

In the matter of the application of Fred H. J. Hammar for a writ of habeas corpus. Writ denied.

Henry Clay Agnew, of Seattle, for petitioner.

John H Dunbar and E. W. Anderson, both of Olympia, opposed.

MAIN, J.

This is an original application in this court for a writ of habeas corpus, by which the petitioner seeks his release from the state penitentiary. It is alleged in the petition that he was tried and convicted of grand larceny in the superior court for King county in August, 1921, and that prior to judgment and sentence he was by a supplemental information charged with being a habitual criminal, in that he had been four times previously convicted in British Columbia of crimes amounting to felonies under the laws of this state. Conviction was had upon the supplemental information, and the petitioner was sentenced under the Habitual Criminal Act.

Section 2286, Rem. Comp. Stat., among other things, provides that every person convicted in this state of certain crimes whether committed 'in this state or elsewhere,' shall be adjudged a 'habitual criminal.' The contention is made that this act is unconstitutional, in so far as it undertakes to give the same effect to convictions in a foreign country 'as given here, without attempting to distinguish between convictions obtained in countries that are civilized from convictions obtained under the laws of barbarious and uncivilized foreign countries.'

The constitutionality of the statute cannot be raised in this proceeding. That question was fully discussed and determined in State, on the Relation of Jahn, v. Searing, 120 Wash. 117, 207 P. 5, and a liberal quotation from the opinion in that case is all that now needs to be said upon the question:

'We shall therefore assume that the only question before us is whether, in an application for a writ of habeas corpus we will determine whether the ordinance under which the conviction was had is violative of the state or Federal Constitutions.

'Section 1075, Rem. Comp. Stat., provides that: '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. * * * 3. Upon a warrant issued from the superior court upon an indictment or information.'

'The question now before us was elaborately considered by this court, sitting en banc, in Re Newcomb, 56 Wash. 395, 105 P. 1042. In that case, speaking through Chief Justice Rudkin, we said: 'After a full and exhaustive examination of the authorities, we are convinced that the judgment of the superior court of Pierce county is not void for any of the reasons assigned. That court had full and complete jurisdiction to determine every question here presented, and its determination is not and cannot be void. We are further of opinion that where a party is held in custody under process issued on the final judgment of a court of competent jurisdiction, or upon a warrant issued from the superior court upon an information or indictment, he is not entitled to his discharge on habeas corpus unless

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