Grieve v. Webb, 29532.
Decision Date | 24 April 1945 |
Docket Number | 29532. |
Citation | 22 Wn.2d 902,158 P.2d 73 |
Parties | GRIEVE v. WEBB. |
Court | Washington Supreme Court |
Department 2.
Proceedings in the matter of the application of Richard Grieve to be released on habeas corpus from the custody of Bert O. Webb Superintendent of the Washington State Penitentiary. From a judgment denying the petition and dismissing the proceedings petitioner appeals.
Affirmed.
Appeal from Superior Court, Thurston County; D. F. Wright, judge.
H. E Foster, of Seattle, for appellant.
Smith Troy and Hugh A. Dressel, both of Olympia, for respondent.
In August, 1944, Richard Grieve filed a petition for a writ of habeas corpus in this court, seeking his discharge from the custody of the superintendent of the Washington State Penitentiary. An order to show cause why the writ should not issue was granted, and made returnable Before the superior court of Thurston county. In due course, a return was filed in that court, in which the respondent alleged that he held the petitioner in custody by virtue of a judgment and sentence, and a commitment issued pursuant thereto by a judge of the superior court of the state of Washington for Yakima county. Certified copies of these documents were attached to the return and made a part thereof. Respondent prayed that the petition be dismissed, and that he be discharged.
Petitioner filed a motion for judgment, on the ground that the return was insufficient in law to authorize his detention, and raised the same question by a general demurrer. The court heard argument on the motion and demurrer, and, in due course, entered an order and judgment denying the petition and dismissing the proceedings. It is from that order that this appeal is taken.
It is recited, in the introductory portion of the petition, that the 'pretense' for the petitioner's detention is a certain document, 'purporting' to be a warrant of commitment issued out of the superior court of the state of Washington for Yakima county, based upon a judgment rendered by that court in March, 1939, following 'an alleged conviction, as the result of a guilty plea, to an Information containing two counts, respectively charging 'Burglary in the Second Degree,' and 'Robbery," and a certified copy of the information and judgment is attached to, and made a part of, the petition. The gist of the petition is found in paragraph VI thereof, which reads as follows: 'That the detention and imprisonment, as aforesaid, is illegal, in this to-wit: That said Information charges two separate and distinct crimes, contrary to the statutes in such cases made and provided, and is, therefore, totally defective and void.'
This case might adequately be disposed of at this point by a few appropriate citations. We think it well, however, to go beyond that, for the following reasons: On nearly every motion calendar of this court, for a number of years, there has appeared one or two applications for writs of habeas corpus by persons confined in the state penitentiary. Almost always, as in the instant case, the petition itself purports to have been prepared by the petitioner. Yet, it is unmistakably evident that almost all have been prepared by, or with the assistance of, a lawyer, or, perhaps, some exlawyer or lawyers temporarily detained in that institution and who therefore, presumably do not have access to an adequate law library. We think that it will work to the advantage of all concerned if it be made clear to these unnamed and unknown advocates that, in the courts of this state the writ of habeas corpus cannot be used as a medium to review trial errors, but that its authorized use is limited by law to those cases where it appears that the judgment and sentence, by virtue of which the petitioner is held in confinement is void on its face.
The writ of habeas corpus existed at common law prior to the promulgation of Magna Charta. There are several of Magna Charta. There are several distinct species of that writ, of which the ad subjiciendum, which is the appropriate remedy for one illegally deprived of his liberty. It has been held to be the remedy referred to when the term 'habeas corpus' appears in the constitution of the United States, and in the constitutions of the states. When the return to the order to show cause why the writ should not issue pleads that the petitioner is held under a commitment issued pursuant to a judgment of a court of general jurisdiction, the authorized scope of the inquiry, unless it has been broadened by statute, is very limited. Literally, there is but one question presented to the court for decision, and that is,--Is this a judgment or a nullity? Moreover, that question is to be resolved by an examination of the judgment pleaded only, and not by opening up the record or by the taking of testimony. The function of the court in such a situation, in the absence of a statute giving it greater authority, was early decided by the supreme court of the United States in Ex parte Watkins, 28 U.S. 193, 201, 3 Pet. 193, 7 L.Ed. 650, a case decided in 1830. The opinion deserves somewhat extensive quotation:
The scope of the inquiry in the federal courts when an alleged judgment is pleaded in a return to an order to show cause in a habeas corpus proceeding has been considerably extended by statutes enacted since the decision, above quoted, was rendered. See Historical Note, 28 U.S.C.A. § 453. In this state, on the contrary, the narrow common-law scope of the inquiry, as defined by Chief Justice Marshall in Ex parte Watkins, supra, has been rigidly preserved by a positive statute. We quote a portion of a section of chapter 4, Remington's Revised Statutes, p. 239, entitled 'Habeas Corpus':
There has been no change whatever in the above text since it was originally adopted as part of the territorial laws of 1854. Laws of 1854, p. 213, § 445. Pertinent decisions are found in the territorial reports. We quote from Ex parte Williams, 1 Wash. T. 240:
'Richard Williams, the petitioner, was tried and sentenced for murder in the second degree, in the court below, and no appeal or writ of error having been prosecuted from such judgment, this court is now asked to consider and review the...
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