Ex parte Towne

• Decision Date: 22 September 1942
• Docket Number: 28815.
• Parties: Ex parte TOWNE.
• Court: Washington Supreme Court

129 P.2d 230

14 Wn.2d 633

Ex parte TOWNE.

No. 28815.

Supreme Court of Washington

September 22, 1942

Habeas corpus proceeding by Don Towne alias Conald Towne to secure his release from the state penitentiary.

Judgment in accordance with opinion.

Don Towne, pro se.

Smith Troy, Atty. Gen., Shirley Marsh, Asst. Atty. Gen., and Kenneth E. Serier, Pros. Atty., of Prosser, for respondent.

STEINERT Justice.

Don Towne, alias Donald Towne, filed in this court his petition for a writ of habeas corpus, alleging that he is being illegally restrained of his liberty by the superintendent of the state penitentiary. In response to an order to show cause, the superintendent made a return reciting the facts concerning petitioner's incarceration and detention, and in justification of his continued restraint of the prisoner presented certified copies of the various legal proceedings leading to petitioner's commitment.

The history of this case is fully shown by the record now Before us, as follows: On May 21, 1934, petitioner was convicted of the crime of burglary in the second degree and was sentenced to confinement in the state reformatory for a period of not less than six, nor more than eighteen, months, the sentence being at the same time suspended during good behavior. On October 21, 1937, an information was filed in Benton county in cause number 758, charging petitioner with the crime of robbery. Petitioner pleaded not guilty and proceeded to trial Before a jury on the same day. The trial concluded late in the afternoon of October 22nd, and on the following day, at 12:10 o'clock p.m., the jury returned a verdict finding petitioner guilty of the lesser, and included, crime of petit larceny. Immediately thereafter, the prosecuting attorney filed an information in the same cause number 758, charging petitioner with being an habitual criminal. Petitioner pleaded not guilty and at once submitted himself to trial Before a jury then empanelled. At the conclusion of the evidence, the jury after a brief deliberation returned a verdict of guilty upon the latter charge, and in support of its verdict brought in special findings of petitioner's previous convictions. Two days later, October 25, 1937, petitioner served and filed his motion in arrest of judgment with reference to the latter conviction. On October 28th, the court denied the motion, and likewise petitioner's motion for new trial. On the same day, the court signed and entered its judgment upon the petit larceny conviction, imposing a sentence of confinement in the county jail for a period of four months and twenty-two days, with credit allowed to petitioner for the time he had already spent in jail since his arrest. On that day, October 28, 1937, the court also signed and entered its judgment upon the habitual criminal verdict. That judgment recited the previous convictions of the petitioner, declared him guilty of the crime of being an habitual criminal by reason of such convictions, and imposed a sentence of confinement in the state penitentiary for a period of not more than twenty, nor less than ten, years. This latter judgment was recorded in the superior court journal ahead of the judgment upon the petit larceny conviction, but for the purposes of this case we will assume, as petitioner has assumed, that the judgment upon the petit larceny charge was entered first. On December 13, 1937, the court, on motion of the petitioner, signed and entered an amended judgment striking the minimum term of confinement in the penitentiary, as fixed in the original judgment of conviction upon the habitual criminal charge. That fact is, however, of no importance here.

Upon the hearing in this court, two questions are presented for our decision: (1) Is the petitioner now held in confinement under a valid sentence and commitment, and (2) if he is not so held, is he therefore now entitled to an immediate and absolute discharge from any custody exercised by the prison authorities? There is no dispute between the parties upon the first question, for the respondent concedes that the sentence under which petitioner stands committed and imprisoned in the penitentiary is invalid. We shall nevertheless consider and rule upon that question.

This court has definitely held that one charged with being an habitual criminal is not thereby charged with a substantive crime but merely with a status, which, if the charge is substantiated, calls for increased punishment for the latest crime of which the accused has been convicted; further, that the habitual criminal charge is related to the conviction for a prior substantive crime only to the extent that the sentence for that crime is mandatorily made more severe. State ex rel. Edelstein v. Huncke, 138 Wash. 495, 244 P. 721; State v. Fowler, 187 Wash. 450, 60 P.2d 83; State v. Johnson, 194 Wash. 438, 78 P.2d 561; State v. Domanski, 5 Wash.2d 686, 106 P.2d 591; Blake v. Mahoney, 9 Wash.2d 110, 113 P.2d 1028; Ex parte Lombardi, Wash., 123 P.2d 764; Ex parte Cress, Wash., 123 P.2d 767; State v. Furth,

5 Wash.2d 1, 104 P.2d 925.

We have also held that any judgment of conviction for the alleged crime of being an habitual criminal, and any sentence based upon such judgment, are not merely erroneous or irregular, but are absolutely void. Blake v. Mahoney, supra; Ex parte Lombardi, supra; Ex parte Cress, supra; State v. Dooly, Wash., 128 P.2d 486.

We have further held that if a judgment under which one is restrained of his liberty is utterly void, and not merely voidable, it may be assailed, and habeas corpus is a proper remedy. Ex parte Lombardi, supra; accord, In re Blystone, 75 Wash. 286, 134 P. 827; Williams v. McCauley, 7 Wash.2d 1, 108 P.2d 822; Voigt v. Mahoney, 10 Wash.2d 157, 116 P.2d 300. Such is the rule generally. See 25 Am.Jur. 184, Habeas Corpus, § 55; 29 C.J. 51, Habeas Corpus, § 46; note, 1932, 76 A.L.R. 468, 495.

From the face of the record in this case, it clearly appears that the petitioner was sentenced to confinement in the state penitentiary solely upon a judgment of conviction for the suppositious crime of being an habitual criminal, and not upon a judgment of conviction for the substantive crime of petit larceny requiring the imposition of increased punishment because petitioner had in the meantime been adjudged an habitual criminal. The court was without power to render judgment based solely upon the habitual criminal conviction, and consequently that judgment and the sentence thereunder were absolutely void and are now so declared.

We come, then, to the crucial question in this case, namely, whether the petitioner is now entitled to an immediate and absolute discharge from all official custody.

As heretofore shown, the record discloses the following pertinent facts: (1) On October 23, 1937 petitioner was found guilty of the crime of petit larceny; (2) thereafter on the same day, and in the same cause, an information was filed charging petitioner with being an habitual criminal; (3) on that day, also, he was tried upon the latter charge and was found guilty, that is, he was found to have the status of an habitual criminal by reason of prior convictions; (4) on October 28, 1937, judgment was entered, and sentence imposed, upon petitioner's conviction for the crime of petit larceny; (5) following that, on the same day, judgment was entered, and sentence imposed, upon his conviction, or rather determination, of being an habitual criminal. This latter judgment and sentence we have herein already declared null and void. However, the important factor to be remembered in the determination of the question now under consideration is that the information charging petitioner with being an habitual criminal was filed after the return of the verdict finding him guilty of the crime of petit larceny, but Before the entry of any judgment on that verdict or any other verdict. That order of procedure has been repeatedly approved by this court. State ex rel. Edelstein v. Huneke, 138 Wash. 495, 244 P. 721; State ex rel. Edelstein v. Huneke, 140 Wash. 385, 249 P. 784, 250 P. 469; State v. Plautz, 185 Wash. 578, 55 P.2d 1057; State v. Delano, 189 Wash. 230, 64 P.2d 511; State v. Courser, 199 Wash. 559, 92 P.2d...