Fathers v. Smith

• Decision Date: 30 August 1946
• Docket Number: 29905.
• Citation: 171 P.2d 1012,25 Wn.2d 896
• Court: Washington Supreme Court
• Parties: FATHERS v. SMITH, Superintendent of State Penitentiary.

171 P.2d 1012

25 Wn.2d 896

FATHERS v. SMITH, Superintendent of State Penitentiary.

No. 29905.

Supreme Court of Washington

August 30, 1946

Department 2

Habeas corpus proceeding by Lloyd L. Fathers against Tom Smith Superintendent of the Washington State Penitentiary. From an order denying his application for an alternative writ petitioner appeals.

Order affirmed.

Appeal from Superior Court, Walla Walla County; Timothy A. Paul judge.

Lloyd L. Fathers, of Walla Walla (Penitentiary) per se.

Smith Troy and Edward J. Lehan, both of Olympia, for respondent.

JEFFERS, Justice.

On or about January 22, 1946, Lloyd L. Fathers filed with the clerk of the superior court of the state of Washington for Walla Walla county his petition for a writ of habeas corpus. In order that there be no question as to the allegations of the petition, we set it out in full:

'I. That petitioner is illegally imprisoned, detained and restrained of his liberty in the Washington State Penitentiary by Tom Smith, Superintendent thereof and respondent herein.

'II. That the cause or pretense of such illegal and unlawful imprisonment is by virtue of a certain alleged judgment and sentence entered by the superior court of the state of Washington in and for King county, on the 17th day of January, 1930, in Cause No. 15224 entitled 'State of Washington, plaintiff, vs. Lloyd L. Fathers, defendant,' a true copy of which is hereto attached and marked 'Exhibit A' and made a part hereof by reference.

'III. That said restraint and imprisonment is unlawful and illegal, and that petitioner is deprived of his liberty without due process of law and in violation of his rights under the constitution of the state of Washington and the Sixth and Fourteenth Amendments to the Constitution of the United States, and that said illegality and deprivation of petitioner's constitutionally protected rights consist in this, to-wit:

'IV. The petitioner was sentenced to a term of not less than 15 years and not more than 40 years, with his actual term of imprisonment to be fixed by what was then known as the board of control of the state of Washington, from which term of imprisonment he was entitled to earn one-third off for good conduct.

'V. That Before his time of imprisonment had been set by said board, said board of control was abolished by the legislature of the state, and no provision was made by the state for fixing petitioner's term of imprisonment or good time allowance, thus depriving petitioner of his right to have a term of imprisonment fixed and good time allowance, thereby compelling petitioner to serve the full maximum time of forty years as set by the court, thus subjecting petitioner to cruel and inhuman punishment.

'VI. That later a board known as the board of prison terms and paroles was created, which board called petitioner Before them and advised him that they could not set his term of imprisonment because they did not succeed to any of the rights and powers formerly held by the aforesaid board of control.

'VII. That petitioner has now served sixteen years imprisonment on a minimum sentence of fifteen years and unless given relief by this court, will be compelled to serve the full maximum of forty years.

'VIII. That since the state of Washington did not provide for the fixing of petitioner's term of imprisonment after abolishing the board of control, then the minimum term of fifteen years as fixed by the court must apply.

'Wherefore petitioner prays that a show cause order be entered herein, directed to the said Tom Smith, superintendent of the Washington State Penitentiary, respondent, commanding him to appear Before this court, on some certain day to be named therein, and show cause, if any he has, why a writ of habeas corpus should not issue as prayed.'

Judge Paul apparently gave considerable time and attention to this petition, and sometime prior to February 11, 1946, made and entered an order denying petitioner's application for an alternative writ. The order made and entered is some four pages in length and sets out fully the court's reasons for denying the writ. The order deals entirely with the second question presented on this appeal (which will be hereinafter set out), and concludes as follows:

'Even though the board [of prison terms and paroles] never paroles him he has no legal right to a writ in habeas corpus, or any other relief from the court, until he has served his maximum term of 40 years.

'For that reason nothing can be gained by issuing an alternative writ in habeas corpus and the application therefor is denied.'

Petitioner has appealed from the order entered. No question is raised as to the finality of the order.

In his brief appellant states that two questions are raised by this appeal: (1) Did the superior court have the power to dismiss petitioner's application for a writ of habeas corpus without giving notice to the parties hereto and without allowing petitioner to be heard? (2) Does a person convicted of a crime prior to the enactment of the law of the state of Washington creating what is now known as the board of prison terms and paroles (Laws 1935, chap. 114) come under the jurisdiction of such board? In his brief appellant states that he was convicted of the crime of burglary in the first degree on January 17, 1930, by the superior court for King county, and sentenced for a term of not less than fifteen years and not more than forty years.

The judgment and sentence referred to in paragraph II of the petition, pursuant to which appellant was committed and is now being held at the state penitentiary, appears fair and valid on its face, and this being true, under our decision in In re Grieve, 22 Wash.2d 902, 158 P.2d 73, appellant is not entitled to a writ of habeas corpus.

However, as we read appellant's petition and his brief, he does not question the validity of the judgment and sentence, but contends he is entitled to the relief sought upon other grounds.

While from the record Before us, which consists only of the petition, order denying alternative writ, and notice of appeal, we do not see how it could be contended that the first question presented by appellant is Before us, in view of the fact that respondent has also proposed almost the same question, apparently assuming that the court's order was made and filed without formal hearing or notice to either party, we shall answer the question presented.

Whether or not a show cause order should have been issued herein and the matter brought on for hearing, depends upon whether the petition of appellant has complied with the statutory requirements, and whether the allegations of the petition, assuming them to be true, make a prima facie case for the relief prayed for.

The general rule with respect to the exercise of discretion by a court in denying or granting an application for a writ of habeas corpus will be found in 25 Am.Jur. 153, § 16:

'Habeas corpus is a writ of right, but not a writ of course, since probable cause must be shown. In other words, the privilege of a prisoner to demand the writ as a matter of right does not necessarily imply that he must also have the writ as a matter of right without showing a prima facie case entitling him to be discharged or bailed. It is true that there are some early decisions to the effect that the court is bound in the first instance to issue the writ at all events without exercising its discretion as to the grounds upon which the writ was moved, but the later decisions definitely establish the...