Huffman v. Smith

• Decision Date: 01 November 1949
• Docket Number: 31084.
• Parties: HUFFMAN v. SMITH.
• Court: Washington Supreme Court

210 P.2d 805

34 Wn.2d 914

HUFFMAN v. SMITH.

No. 31084.

Supreme Court of Washington

November 1, 1949

Department 2

Rehearing Denied Nov. 25, 1949.

Proceeding in the matter of the application for a writ of habeas corpus by William J. Huffman against Tom Smith, superintendent of the Washington State Penitentiary.

The Superior Court of Thurston County, John M. Wilson, J., denied the application after it was referred by the Chief Justice of the Supreme Court, and applicant appealed.

The Supreme Court, Hamley, J., affirmed the order, and held that a judgment of conviction for family desertion arising out of abandonment of a wife and refusal to support a child under the age of 16 years was not void on the ground of imposition of two penalties for one crime and that it did not violate constitutional safeguards against double jeopardy.

William J. Huffman, pro se.

Smith Troy, John D. Blankinship, Olympia, for respondent.

HAMLEY Justice.

In this habeas corpus proceeding appellant seeks release from his detention in the Washington state penitentiary. It is his contention that the judgment and sentence under which he is being detained is void for the reason that it imposes two penalties upon him for the one crime of family desertion contrary to the provisions of the applicable statute and in violation of constitutional safeguards against double jeopardy.

Appellant instituted the proceeding originally in this court by filing an application for a writ of habeas corpus. The chief justice referred the application to the superior court for Thurston county and ordered the superintendent of the state penitentiary to show cause Before that court, on a day fixed, why the application should not be granted. Following a hearing, the trial court denied the application whereupon this appeal was taken.

The judgment and sentence, entered on January 10, 1946, pursuant to a jury verdict, adjudged appellant guilty of

'* * * wilfully, feloniously and unlawfully, and without justification, abandoning and leaving his wife in a destitute condition and refused and neglected to provide such wife with the necessary food, clothing, shelter and medical attendance although he had sufficient ability to so provide,' and

'* * * wilfully, unlawfully and feloniously deserting his child of about two weeks of age and dependent upon him for her care, education and support and that he did abandon her and omit with unlawful excuse, to furnish the necessary food clothing, shelter and medical attendance for her.'

Appellant was sentenced to serve one year in the county jail on count I, the judgment and sentence reciting that this time had already been served. He was sentenced to serve twenty years in the state penitentiary on count II.

It is appellant's contention that the abandonment and neglect of his wife and the desertion of and failure to support his child constituted but a single offense. The amended information alleges that the acts complained of occurred 'on or about the 15th day of March, 1945.' The amended information makes no mention of count I or of count II, but accuses him of 'the crime of Family Desertion, set out as follows, to-wit: * * *' The amended information then proceeds to set out, as subsections of one paragraph, the two charges in substantially the same form as recited in the judgment and sentence.

The form or sufficiency of the information cannot be reviewed by a writ of habeas corpus. In re Grieve, 22 Wash.2d 902, 158 P.2d 73; In re Bailleaux, 26 Wash.2d 60, 173 P.2d 122. The only question Before us is whether the judgment, including the sentence upon which the petitioner for such writ is held in confinement, is void on its face. In re Rice, 24 Wash.2d 118, 163 P.2d 583. We refer to the amended information only for the purpose of determining the nature of the offense charged, as we did in the recent case of Jeane v. Smith, Wash.,1949, 210 P.2d 127.

The appellant was tried and convicted pursuant to Laws of 1943, chapter 158, p. 514, Rem.Supp.1943, § 6908, entitled 'Domestic Relations--Family Desertion.' The pertinent portion of § 1 of this statute reads as follows:

'Every person who, 1st: having any child under the age of sixteen (16) years dependent upon him or her for care, education or support, deserts such child in any manner whatever, with intent to abandon it;

'2nd: Wilfully omits, without lawful excuse, to furnish necessary food, clothing, shelter, or medical attendance for his or her child or children or ward or wards;

'3rd: Having sufficient ability to provide for his wife's support, or who is able to earn the means for such wife's support, who wilfully abandons and leaves his wife in a destitute condition, or who refuses or neglects to provide such wife with necessary food, clothing, shelter, or medical attendance, unless by her misconduct he is justified in abandoning her, shall be guilty of the crime of family desertion or nonsupport and shall be punished as follows:

'A. When such act is committed and children are involved under the age of sixteen (16) years, such act shall be a felony and punished by imprisonment in the State Penitentiary for not more than twenty (20) years or by imprisonment in the county jail for not more than one (1) year or by fine of not more than one thousand dollars ($1,000) or by both fine and imprisonment;

'B. When such act is committed and there is no child under sixteen (16) years, said act shall be a gross misdemeanor and shall be punished by imprisonment in the county jail for not more than one (1) year or by fine of not more than one thousand dollars ($1,000) or by both fine and imprisonment.'

The statute defines four separate offenses, and provides that a person committing any of these offenses shall be guilty 'of the crime of family desertion or nonsupport.' (Italics ours.) Applying the appropriate designation to the kind of offense defined, it will be seen that the offenses which constitute the crime of 'family desertion' are the desertion of a child under the age of sixteen years (paragraph No. 1 of the statute), and the abandonment of a wife (paragraph No. 3). The offenses which constitute the crime of 'non-support' are the omission to furnish necessities for a child or ward (paragraph No. 2), and the refusal or neglect to provide necessities for a wife (paragraph No. 3).

The crime of family desertion involving the...