Ex parte Powell

• Decision Date: 09 August 1937
• Docket Number: 26543.
• Citation: 191 Wash. 152,70 P.2d 778
• Parties: Ex parte POWELL et al.
• Court: Washington Supreme Court

70 P.2d 778

191 Wash. 152

Ex parte POWELL et al.

No. 26543.

Supreme Court of Washington

August 9, 1937

Department 2.

Appeal from Superior Court, King County; Malcolm Douglas, Judge.

Proceeding in the matter of the application of Fred Powell and Ridge Bentley for a writ of habeas corpus. From an order denying and dismissing the application, Fred Powell and Ridge Bentley appeal.

Appeal dismissed.

E. K Marohn, of Seattle, for appellants.

B. Gray Warner and Albert D. Rosellini, both of Seattle, for respondent.

STEINERT Chief Justice.

This is an appeal from an order denying and dismissing a petition for writ of habeas corpus.

Fred Powell and Ridge Bentley, appellants herein, were each charged by complaint, filed Before a justice of the peace with the crime of supplying liquor to a minor. Upon a trial Before the justice, they entered pleas of guilty and were convicted. Each was sentenced to pay a fine and ordered committed to the county jail until the same was paid.

Appellants then filed in the superior court a petition for writ of habeas corpus, seeking release from imprisonment on the grounds that the justice of the peace was wholly without jurisdiction and that the sentences were illegal. Trial was had, at which evidence was introduced, and the application was denied. Appellants thereafter took an appeal to the superior court from the judgment and sentence previously rendered by the justice of the peace, and the cause was subsequently set for trial, and is now pending, in the superior court. These facts appear from the statement of facts supplied by appellants.

It appears from a statement in respondent's brief and also by an oral admission of appellants' counsel in the course of the argument Before this court that appellants were out on bail at the time of the hearing of this appeal. That being the fact, the case is controlled by certain wellsettled principles of law.

Unless there be an actual or physical restraint of a person, the writ of habeas corpus may not issue, and a person released from imprisonment on bail is not so restrained of his liberty as to be entitled to the writ.

This statement of the law is supported by the overwhelming weight of authority. The cases upon the subject will be found in an annotation appearing in 35 L.R.A. (N.S.) 882, appended to the case of Ex parte Ford, 160 Cal. 334, 116 P. 757, 35 L.R.A (N.S.) 882, Ann.Cas.1912D, 1267, and in a later annotation appearing in 14 A.L.R. 344, appended to the case of Hyde v. Nelson, 287 Mo. 130, 229 S.W. 200, 14 A.L.R. 339, supplemented in A.L.R. Blue Book, 1936 Revision, page 107. See, also, Mackenzie v. Barrett (C.C.A.) 141 F. 964, 5 Ann.Cas. 552.

We will quote from only two of the decisions as illustrative of the general holding.

In Re Newman, 33 Ariz. 41, 262 P. 10, 11, the court said: 'The office of the writ of habeas corpus has always been, and by virtue of the above statute is, to secure one's liberty from actual restraint or custody. A party out on bail is as much at liberty as anyone else. He may come and go as he pleases. If he is in anybody's custody, it is that of his bondsmen, and such custody is only nominal or constructive. He is neither actually nor constructively in the custody of the sheriff.'

From In re Markus, 104 N.J.Eq. 513, 146 A. 367, 368, we excerpt the following: 'Habeas corpus has been described as 'the great and efficacious writ, in all manner of illegal confinement,' and that it is 'directed to the person detaining another and...