Ex parte Wright

• Decision Date: 30 November 1948
• Docket Number: 30337.
• Citation: 200 P.2d 478,31 Wn.2d 905
• Parties: Ex parte WRIGHT.
• Court: Washington Supreme Court

200 P.2d 478

31 Wn.2d 905

Ex parte WRIGHT.

No. 30337.

Supreme Court of Washington, En Banc.

November 30, 1948

Rehearing Denied Jan. 6, 1949.

Proceedings by Louella Wright for writ of habeas corpus. From a judgment denying the petition, petitioner appeals.

Judgment affirmed.

MILLARD SIMPSON, and HILL, JJ., dissenting.

Appeal from Superior Court, Clallam County; Ralph Smythe, judge.

Wm. J Conniff, of Port Angeles, for appellant.

Dana E Harper and Howard V. Doherty, both of Port Angeles, for respondent.

SCHWELLENBACH, Justice.

This is an appeal from a judgment denying a petition for a writ of habeas corpus.

Louella Wright pleaded guilty in the justice court presided over by Judge Filion, in Clallam County, to the charge of possession of intoxicating liquor with intent to sell the same. She was fined three hundred dollars and costs, and sentenced to serve sixty days in the county jail, thirty days of which sentence was suspended.

In order to better understand the facts, we quote rather extensively from the testimony given at the hearing on the petition for the writ of habeas corpus.

Deputy Sheriff J. W. Stewart testified:

'Q. I hope I have the right deputy. Mr. Stewart you are the deputy sheriff. On or about the 18th of April one Louella Wright received a sentence in Justice Court? A. Yes she was sentenced to serve thirty days in jail.

'Q. What happened? A. Do you want me to tell the procedure, what happened?

'Q. Did you ever get her custody or was she ever committed to jail? A. She never was taken into custody.

'Q. What happened? A. I talked to Mr. and Mrs. Wright, to Mrs. Wright alone first and she said that she was sick and under a doctor's care and that Mr. Wright had gone to town to get a doctor, and I told her that if she wanted to come down stairs in the office that she could come down there and wait and she came down and waited there until Mr. Wright came back. She walked down with another gentleman that was with her and I walked down with them and then he left and Mr. Wright came back shortly after and said that he had contacted Dr. McGillivray and that the doctor was coming up in a very short time to see Mrs. Wright, and she sat there and waited until the doctor came in and he came in possibly an hour later and I talked to Dr. McGillivray and Mrs. Wright and told them that they could go into the private office that we have if he wanted to talk to her privately, and they were in there possibly ten minutes and Dr. McGillivray came out and said that Mrs. Wright needed hospitalization and that he was going to have to take her to the hospital.

'Q. And she did go to the hospital and has been there ever since as far as you know? A. Yes sir.

'Q. She has never been in your custody? A. No.

'Q. Has she ever been placed in jail? A. No.

'Q. Has she ever served one minute? A. No.'

Under cross-examination he testified:

'Q. You testified that Dr. McGillivray and Mr. Wright and Mrs. Wright were in your office? A. Yes.

'Q. That was after you had her commitment from up stairs? A. I don't know whether we had the commitment or not. He doesn't generally bring them down right away.

'Q. But she was there in the sheriff's office wasn't she? A. She was sitting in the outer part of the office where all the people who come in their wait, it is outside the counter.

'Q. She was in the sheriff's office? A. Yes.'

Jack Abbott, the office deputy sheriff, testified: that Mrs. Wright did not serve any part of her sentence because Dr. McGillivray stated that she should be committed to the hospital; that she was taken to the hospital by deputy sheriff Breece, although her husband had his car there ready to take her; that at the time Breece took her, the husband was down in her attorney's office; that they asked the hospital to notify them when she was to be released; that after being hospitalized for five days they were notified that she was leaving; that he went over to take her into custody and she said that she had to stay in bed according to the doctor's orders, and she decided to stay in the hospital instead of going to jail.

Mrs. Virginia Smith, employed at the hospital, testified that when Mrs. Wright was about to be released, after five days, her husband came to take her home, and asked for his bill; and she then remembered that she was to call the sheriff's office. This was done and Mr. Abbott came, with the result as heretofore related. Mrs. Wright's chart showed that after that date her temperature went up to 101 degrees. At the conclusion of Mrs. Smith's examination, the court asked her:

'The Court: Was she under any restraint whatever, was there anyone to keep her in her room? A. No.

'Q. Was there any directions given that she was to be kept in her room? A. The only thing the sheriff's office, it didn't come direct to me, it came through one of the other members of the office, that they were to be notified when she was to leave.

'Q. When she was well enough to leave? A. Yes.'

Deputy Breece, who took her to the hospital, testified:

'Q. Do you recall on the 18th day of April 1947 a request relating to Louella Wright in Justice Court. A. I do.

'Q. What was done with her immediately following that judgment? A. She came down to the office and I wasn't in when she came down but I was there when the doctor completed his examination and as I walked in they were coming out of the office and he said 'can you take this lady to the hospital she will have to be hospitalized as she had a slight congestion of one lung,' and I said 'well I can take her' and that was all that was said that I know of.

'Q. Did you take her over? A. Yes.

'Q. And that was at the request of her doctor? A. I presume so, that is the way I understood it he asked me 'can you take her to the hospital she will have to be hospitalized she has a congested lung,' a slight congestion I think he said.'

Harold Wright, the husband of Mrs. Wright, testified that after the trial they went down to the sheriff's office; that the sheriff took her down there; that he, Wright, called the doctor; that the doctor ordered her to be hospitalized and told the sheriff that she was in no fit condition to go to jail; that after she had been at the hospital five or six days he and the doctor thought it would be better if she could stay home and be in bed; that when he started to take her home the deputy sheriff was there and told her that she had her choice to either go to jail or go back in the hospital. She was in the hospital at the time of the habeas corpus hearing.

Although there is a conflict in the testimony, one fact appears to be perfectly clear; this lady did not want to go to jail.

At the hearing the trial court found that there was no restraint of her liberty during the time that she was in the hospital, and denied the writ. In its oral opinion the trial court stated that she was booked. We have carefully examined the record and do not find any such testimony. As to that statement, the trial court was in error.

The question for our determination is whether or not, under the facts of this case, appellant was in 'custody' and therefore served her sentence. There is no question but that she never spent one minute in jail.

The majority rule is stated in an annotation in 72 A.L.R. 1271, as follows:

'According to the great weight of authority, if there is no statute providing otherwise, delay in taking the defendant into custody after conviction and sentence in no way releases the convict from the necessity of suffering the full penalty imposed by the sentence. 'Where the penalty is imprisonment, the sentence of the law is to be satisfied only by the actual suffering of the imprisonment imposed, unless remitted by death or by some legal authority. Therefore the expiration of time without imprisonment is in no sense an execution of the sentence. Accordingly, where the judgment and sentence is imprisonment for a certain term, and from any cause the time elapses without the imprisonment being endured, it will still be a valid, subsisting, unexecuted judgment. * * * And therefore, where a convicted defendant is at liberty and has not served his sentence, if there is no statute to the contrary, he may be rearrested as for an escape, and ordered into custody on the unexecuted judgment, and the result is the same if he escapes to another jurisdiction and is brought back, though by illegal means.' 8 R.C.L. 259. When a convict is not taken into custody after final sentence is pronounced, it becomes his duty to surrender himself to the proper authorities, and if no order committing him has been issued he must demand such issuance, otherwise he will be considered to have acquiesced in the delay though he has done nothing actively to avoid the penalty imposed by the sentence.'

Appellant relies upon State ex rel. McCoske v. Kinnear, 145 Wash. 686, 261 P. 795; Kusah v. McCorkle, 100 Wash. 318, 170 P. 1023, L.R.A.1918C, 1158; Spicer v. Williamson, 191 N.C. 487, 132 S.E. 291, 44 A.L.R. 1280; In re Cavitt, 170 Wash. 84, 15 P.2d 276; State ex rel. Siehl v. Jorgenson, 176 Minn. 572, 224 N.W. 156, 62 A.L.R. 244; and State v. Brouillette, 163 La. 46, 111 So. 491.

In State ex rel. McCoske v. Kinnear, supra [145 Wash. 686, 261 P. 796], the prisoner, upon being sentenced to the penitentiary by the superior court, spent some time in the county jail prior to being transported to the penitentiary. The question in that case was: When did he become eligible for parole? We said, after quoting Rem.Comp.Stat. § 1746:

'This section is plain and unambiguous, and a prisoner becomes eligible for parole upon the expiration of his full minimum sentence from the date fixed in accordance with this statute, regardless of when he may actually enter the...