Ex parte Wells

Citation90 F. Supp. 855
Decision Date30 March 1950
Docket NumberNo. 29448.,29448.
PartiesEx parte WELLS.
CourtU.S. District Court — Northern District of California

C. K. Curtright, Philip C. Wilkins, Sacramento, Cal., and Charles R. Garry, San Francisco, Cal., attorneys for petitioner.

Fred N. Howser, Attorney General of the State of California, and Clarence Linn, Deputy Attorney General, attorneys for the State of California.

GOODMAN, District Judge.

On January 27, 1950, Wesley Robert Wells filed in this Court a petition for the writ of habeas corpus. He alleged that he was to be put to death, the next day, by the Warden of the California State Penitentiary at San Quentin, Northern District of California, pursuant to a judgment and commitment of the Superior Court of the State of California in and for the County of Sacramento of date March 3, 1949. Further he alleged circumstances which, prima facie, indicated that his life was to be taken by the State of California without due process of law contrary to the prohibition of the 14th Amendment of the United States Constitution. Not having sufficient time to consider the merits of the important issue tendered by the petition, by authority of 28 U.S.C.A. § 2251, I granted a stay of execution. Thereupon an order was directed to the Warden requiring him to show cause why the relief prayed for in the petition should not be granted. The Warden filed a return in which he set up the Court's commitment, above referred to, as his authority for executing petitioner. The State of California filed a response to the petition in which was set out a detailed history of the many penal judgments and commitments against petitioner over a long period of time. The State also moved to dismiss the petition. On the return day, counsel for petitioner and the State's Attorney General argued the issues raised. Briefs were later filed, and now the Court, having considered the cause, makes its decision.

The undisputed and stipulated record discloses the following:

Since 1925, petitioner has served terms in California prisons for larceny, larceny of an automobile, receiving stolen property, killing of an inmate while in prison, violation of § 503 of the California Vehicle Code, with two prior convictions; and on September 26, 1944 for violation of § 4502, California Penal Code (which makes possession of a deadly weapon while an inmate of prison a felony). Imprisonment for the last named offense was for a minimum term of five years. California law provides that the maximum for such offense is life imprisonment or such lesser maximum term as may be fixed by the Adult Authority of the State. 1168, 4502, 2940, Penal Code.

On April 10, 1947, 2½ years after the commitment of 1944, the Adult Authority had not yet fixed petitioner's term. On that day he assaulted a guard, one Noble Brown, and was thereafter convicted of violating § 4500 of the Penal Code and sentenced to be executed. Section 4500 provides that a person "undergoing a life sentence" who, with malice aforethought, assaults the person of another with a deadly weapon or instrument, or by any means of force likely to produce great bodily injury, is punishable with death.

The conviction was appealed to the Supreme Court of California. Upon the appeal, among other grounds, the unconstitutionality of § 4500 was urged. The Supreme Court of California (by a divided court, 3 judges dissenting) affirmed the conviction. People v. Wells, 33 Cal.2d 330, 202 P.2d 53. Petition for rehearing was denied. Certiorari was denied by the United States Supreme Court, 338 U.S. 836, 70 S.Ct. 43, 94 L.Ed. ___.1

The California Supreme Court held that § 4500 was not constitutionally infirm. It reaffirmed its holding in People v. McNabb, 3 Cal.2d 441, 45 P.2d 334 that § 4500 applied to persons committed for a fixed minimum and indeterminate maximum term. It held that until the precise maximum term of such persons was fixed by the Adult Authority, they were "undergoing a life sentence."

The order which the Court will make herein does not require a consideration of the question of the constitutionality of § 4500. It is only necessary to consider, for the reasons to follow, whether the petitioner was accorded "due process" in the sense that he was in fact "undergoing a life sentence," on April 10, 1947.

It appears from the record that there is no doubt that during his incarceration in California prisons and particularly during the period from 1944 to April 1947, petitioner was an incorrigible, unruly and violent person, having committed innumerable infractions of prison rules. He refused to obey orders and struck and blasphemed prisoners and guards. It is clear that he has been and apparently still is, in every sense of the word, a bad and dangerous man.

But whether he is lawfully to be deprived of his life is not to be determined by his general character, for that is indeed too reminiscent of the policy of "liquidation" of present and past dictatorships. But rather should it be an impartial judgment as to whether, in fact, when he committed the assault of April 10, 1947, he was "undergoing a life sentence."

It is undisputed in the record that in November of 1944, the Adult Authority (the California administrative body entrusted with the function of fixing actual terms of sentences and granting or denying paroles) began the gathering of data for the purpose of determining, sometime in February of 1945, whether petitioner should be paroled, and, necessarily in that connection, the exact term of sentence. It addressed a letter on the subject to the District Attorney of Sacramento County, who had prosecuted the case against the petitioner. The District Attorney's reply dated December 15, 1944, is as follows:

"December 15, 1944 Adult Authority Department of Corrections of the State of California State Prison Folsom In re: Wesley Robert Wells 24155-A

Gentlemen:

I have your letter of November 30, 1944, in which you advise that the above named is scheduled to appear before your body during February, 1945, for parole consideration.

The offense for which this defendant was convicted arose at Folsom Prison. You are therefore entirely conversant with all the facts. You should also be conversant with the character and dangerous potentialities of Wells.

It is our recommendation and our suggestion that your Authority not fix a definite term in this case. As long as you fail to do so, his maximum sentence will remain at life, and he will be subject to prosecution under the statute which makes it a capital offense for a life-term prisoner to commit an assault. I think there can be no question but that this man will eventually take the life of a fellow being, if his life is not taken first. He is the type of man who should never be released from prison under any circumstances.

Yours very truly John Q. Brown, District Attorney By Albert H. Mundt Chief Deputy District Attorney"

When the Adult Authority met in February or April of 1945, it took no action in petitioner's case. Nor did it do so at any time, in the sense of fixing the term of his sentence, up to April 10, 1947. The recommendation of the District Attorney was therefore followed. At any rate, what he recommended was the policy followed by the Adult Authority.

The pertinent question is whether these circumstances tainted the judgment of death with a lack of the "due process" commanded by the 14th Amendment. What is "due process"? Much has been written on the subject.

In 1884, Mr. Justice Matthews stated,2 in the famous case of Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 292, 28 L.Ed. 232, with reference to the rules established in our system of jurisprudence for the security of private rights that "if any of these (general rules) are disregarded in the proceedings by which a person is condemned to the loss of life, liberty, or property, then the deprivation has not been by `due process of law.'" Mr. Justice Field, in Hagar v. Reclamation District No. 108, 111 U.S. 701, 4 S.Ct. 663, 667, 28 L.Ed. 569, decided the same year and shortly after the Hurtado decision, stated "there can be no proceeding against life, liberty, or property which may result in the deprivation of either, without the observance of those general rules established in our system of jurisprudence for the security of private rights." In 1941, Mr. Justice Murphy stated in Young v. United States, 315 U.S. 257, at page 259, 62 S.Ct. 510, at page 511, 86 L.Ed. 832: "The public interest that a result be reached which promotes a well-ordered society is foremost in every criminal proceeding. That interest is entrusted to our consideration and protection as well as that of the enforcing...

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9 cases
  • Brown v. Allen Speller v. Allen Daniels v. Allen
    • United States
    • U.S. Supreme Court
    • February 9, 1953
    ...remitted to the state courts. The district judge held on the merits that the California courts had misapplied California law. Ex parte Wells, D.C., 90 F.Supp. 855. When the petitioner applied to the Supreme Court of California for a writ of habeas corpus, as he was instructed to do by the d......
  • People v. Wells
    • United States
    • California Court of Appeals Court of Appeals
    • April 23, 1968
    ...1944 judgment was, under California law, a life sentence which brought Wells within the terms of section 4500. (See also Ex parte Wells (D.C. 1950) 90 F.Supp. 855; In re Wells (1950) 35 Cal.2d 889, 221 P.2d 947; Ex parte Wells (D.C.1951) 99 F.Supp. 320, 321; Wells v. State of California (D.......
  • People v. Harmon
    • United States
    • California Supreme Court
    • April 8, 1960
    ... ... Wells (1949), 33 Cal.2d 330, 334-337 (2a-2b), 202 P.2d 53, and cases there cited, where arguments similar to those advanced by defendant here had been ... Other arguments concerning the application and constitutionality of section 4500 which are reiterated by defendant were viewed favorably in Ex parte Wells (1950, D.C., N.D.Cal., S.D.), 90 F.Supp. 855, 858 (1), but thereafter rejected by this court in the case of In re Wells (1950), 35 Cal.2d 889, ... ...
  • Ex parte Wells
    • United States
    • U.S. District Court — Northern District of California
    • June 18, 1951
  • Request a trial to view additional results

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