Gossett v. Smith

• Citation: 208 P.2d 870,34 Wn.2d 220
• Decision Date: 22 July 1949
• Docket Number: 30799.
• Parties: GOSSETT v. SMITH.
• Court: United States State Supreme Court of Washington

208 P.2d 870

34 Wn.2d 220

GOSSETT v. SMITH.

No. 30799.

Supreme Court of Washington

July 22, 1949

Department 2

Rehearing Denied Sept. 2, 1949.

Proceeding by Berton L. Gossett for a writ of habeas corpus to Tom Smith, as superintendent of the Washington State Penitentiary at Walla Walla. From an order denying the application applicant appeals.

Affirmed.

Appeal from Superior Court, Whatcom County; Hobart S. Dawson, judge.

Berton L. Gossett, pro se.

Smith Troy, and C. John Newlands, Olympia, for respondent.

ROBINSON, Justice.

This is an appeal from an order denying an application for a writ of habeas corpus.

On June 2, 1941, the petitioner pleaded guilty, in the superior court of Whatcom county, to an information charging him with having committed murder in the second degree. Thereupon, the court acting through the Honorable Hobart S. Dawson, a judge thereof, entered a judgment and sentence adjudging appellant to be guilty of the offense charged and imposing a sentence of imprisonment in the state penitentiary at Walla Walla '* * * for a period of not less than ten years nor more than twenty-five years.'

On September 13, 1941, the same court, having Gossett returned Before it, entered a purported judgment and sentence identical with the judgment of June 2, 1941, except that it omitted the minimum sentence. It is reasonably inferable from the record Before us, that this action was taken in the belief that the judgment and sentence entered on June 2, 1941, might be void because of the inclusion of a minimum sentence therein. Subsequently, the board of prison terms and paroles fixed appellant's minimum sentence at not less than fifteen years, to become effective on September 13, 1941.

In June, 1948, appellant applied to this court for a writ of habeas corpus. Early in the following July, the then chief justice of this court issued an order to the respondent, as superintendent of the Washington state penitentiary at Walla Walla, requiring him to show cause Before the superior court of Whatcom county on August 23, 1948, why the writ prayed for should not be issued. He filed a demurrer to the petition for the writ, and thereafter, on the day set for hearing, appeared Before the court, acting through Judge Dawson who, after considering the matter and hearing argument with respect thereto, entered the following order:

'It is hereby ordered, adjudged and decreed that petitioner's application for a writ of habeas corpus be and the same is hereby denied and respondent is hereby discharged from further answer to the order to show cause.

'It is further ordered, adjudged and decreed that the judgment and sentence signed June 2, 1941 in Criminal Cause No. 5828 in the Superior Court of the State of Washington for Whatcom County, be and the same is hereby declared to be a valid and subsisting judgment, though the following language therein is surplusage and of no effect: '* * * Less than 10 years nor * * *,' and as a consequence the term commenced as of June 2, 1941.

'It is further ordered, adjudged and decreed that the judgment and sentence signed September 13, 1941, in Criminal Cause No. 5828 in the Superior Court of the State of Washington for Whatcom County, be and the same [is] hereby declared to be a nullity.

'Done in Open Court this 23rd day of August, 1948.

's/ Hobart S. Dawson, Judge'

The respondent, superintendent of the penitentiary, and his counsel admitted the validity of appellant's contention that the purported judgment of September 13, 1941, was void, and, as plainly appears in the order just above quoted, the superior court of Whatcom county so held. It also held that that part of the judgment and sentence of June 2, 1941, which fixed a minimum sentence, that is, the words 'Less than 10 years nor,' were separable from the rest of the sentence, and ordered them deleted, leaving the remainder of the sentence effective.

Appellant stoutly contends that the superior court had no right or authority to do this, and that the judgment of June 2, 1941, is altogether void. In State v. Feilen, 70 Wash. 65, 67, 126 P. 75, 76, 41 L.R.A.,N.S., 418 Ann.Cas.1914B, 512, it was said:

'* * * When a sentence is legal in one part and illegal in another, it is not open to controversy that the illegal, if separable, may be disregarded, and the legal enforced. United States v. Pridgeon, 153 U.S. 48, 14 S.Ct. 746, 38 L.Ed. 631; State v. Williams, 77 Mo. 310, 313.'

We have cited, and applied, that holding in subsequent opinions. We quote briefly from the opinion in Re Clark, 24 Wash.2d 105, 113, 163 P.2d 577, 581:

'When a sentence is legal in one part and illegal in another, the illegal part, if separable, may be disregarded, and the legal part enforced. State v. Feilen, 70 Wash. 65, 126 P. 75, 41 L.R.A.,N.S., 418, Ann.Cas.1914B, 512. That...