Ex parte Miller

• Decision Date: 07 May 1924
• Docket Number: 18339.
• Citation: 225 P. 429,129 Wash. 538
• Court: Washington Supreme Court
• Parties: Ex parte MILLER.

225 P. 429

129 Wash. 538

Ex parte MILLER.

No. 18339.

Supreme Court of Washington, En Banc.

May 7, 1924

In the matter of the application of Peter Miller for a writ of habeas corpus. Writ denied.

Joseph M. Glasgow, of Seattle, for petitioner.

John H Dunbar and M. H. Wight, both of Olympia, for respondent.

MAIN C.J.

This is an application for a writ of habeas corpus to secure the release of Peter Miller from the state penitentiary. The applicant has three sentences against him: First, pronounced April 19, 1913, for a term of the less than 20 nor more than 40 year for the crime of burglary committed on April 26, 1909; second, pronounced May 21, 1913, for a term not less than 3 nor more than 15 years for the crime of perjury (this sentence to commence at the termination of the first sentence); and, third, pronounced September 24, 1913 for a term not less than 5 nor more than 15 years for the crime of burglary (this sentence to commence at the termination of the second sentence).

The applicant, whose first sentence was the result of having been found by a jury to be an habitual criminal under the act of 1903, c. 86, § 3, claims that the jury so finding was an improper one because not impaneled within the time required by the statute. This was a matter which he should have raised on his appeal, and, not having done so, he has waived the point. State v. Alexander, 65 Wash. 488, 118 P. 645; State v. Miller, 78 Wash. 268, 138 P. 896. The other objection to this jury--that it contained a husband and wife--was considered and passed on adversely to the objection on the appeal. State v. Miller, supra.

The applicant claims that the cumulative sentences are illegal not having been imposed within the provisions of Laws of 1909, c. 249, § 33; Rem. Comp. Stat. § 2285, and also claims that the habitual criminal statute of 1903, c. 86 (which was subsequently amended by Laws of 1909, c. 249, § 34; Rem. Comp. Stat. § 2286), under which he was sentenced for a crime committed before the act of 1909 went into effect, is unconstitutional in that it is a denial of the equal protection of the law. These and other minor matters already adversely disposed of on the appeals of the applicant from his convictions cannot be considered in this action, for, if they were all determined according to the applicant's contention, still he would not be entitled to a writ of habeas corpus, for he has not yet served the sentence which he admits was legally imposed, and habeas corpus is a writ seeking release from confinement and is not a writ by which to review errors. Moreover, the writ will not be granted by this court except in cases involving the interests of the state at large or of public interest, or where it is necessary because of no other adequate remedy. We have said in Re Emch, 124 Wash. 401, 214 P. 1043:

'While it is true that section 4, art. 4, of the state Constitution gives this court original jurisdiction in habeas corpus, this jurisdiction is not exclusive, for section 6 of the same article gives the superior court the same jurisdiction. In view of this situation, this court is afforded a discretion in regard to the matter and may, upon occasion, refrain from assuming jurisdiction and require that resort be made to the superior court. We find the Supreme Courts of states where similar constitutional provisions exist confining their assumption of jurisdiction to cases directly involving the interest of the state at large, or to cases of public interest, or to cases where it is necessary to take jurisdiction in order to afford an adequate remedy.

'12 R. C. L. p. 1218, states the situation as follows:

"But even where the constitution gives the highest court of the state original jurisdiction in habeas corpus, it has frequently been held that some special reason must exist for invoking the powers or the parties will be relegated to a lower court for relief, and accordingly it has been held that appellate courts will not exercise this extraordinary jurisdiction where there is another effective remedy available.'

'See, also, Ex parte Lambert, 36 S.W. (Tex. Cr.) 81.

'The inexpediency of determining the controverted facts before the supreme court presents another reason for the exercise of this court's discretion in favor of the denial of the application in such cases. The principle which we have just announced is the same as that involved in the recent case of State ex rel. Ottensen v. Clausen, ante p. 389, 214 P. 635.'

Returning to the rule that habeas corpus will not lie to review or correct error, we find that we have said in Re Newcomb, 56 Wash. 395, 105 P. 1042:

'A habeas corpus is not a writ of error. It cannot bring a case before us in such a manner that we can exercise any kind of appellante jurisdiction in it.'

The courts which sentenced the applicant had jurisdiction over him and the crimes of which he was guilty and to impose sentences after conviction. The only claim is that they committed errors in imposing sentences for periods not allowed by law. Such errors, if they existed, are corrected in the superior courts and do not deprive those courts of jurisdiction. Beale v. The Commonwealth, 25 Pa. St. 11; In re Bonner, 151 U.S. 242, 14 S.Ct. 323, 38 L.Ed. 149; Ex parte Richard Williams, 1 Wash. Terr. 240; In re Nolan, 21 Wash. 395, 58 P. 222; State v. Gilluly, 50 Wash. 1, 96 P. 512; In re Newcomb, 56 Wash. 395, 105 P. 1042; State v. Andrews, 71 Wash. 181, 127 P. 1102; In re Blystone, 75 Wash. 286, 134 P. 827; 16 C.J. 1312; 29 C.J. 58; 12 R. C. L. 1194; 12 R. C. L. 1208.

In State ex rel. Tingstad v. Starwich, 119 Wash. 561, 206 P. 29, 26 A. L. R. 393, this court said:

'* * * A judgment of sentence made under a wrong statute, or for an unauthorized period, does not deprive the court of jurisdiction to impose and enforce a sentence according to alw.'

Further than this the law expressly prohibits the issuance of a writ of habeas corpus in this case. Section 1075, Rem. Comp. Stat., reads:

'No court or judge shall inquire into the legality of any * * * 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.'

Referring to subdivision 3, this court held in State ex rel Anderson v. Callahan, 119 Wash. 535, 206 P. 13, that it 'would seem to prevent the granting of the writ of habeas corpus' when the 'relator is being held upon a warrant issued from the superior court upon an information, even though the information upon which it was issued has been held defective. * * *' In Re Putnam, 58 Wash. 687, 109 P. 111, the same result was announced concerning the same subdivision. There can be no...