In re Rice

• Decision Date: 15 November 1945
• Docket Number: 29681.
• Parties: In re RICE.
• Court: Washington Supreme Court

163 P.2d 583

24 Wn.2d 118

In re RICE.

No. 29681.

Supreme Court of Washington

November 15, 1945

Department 1.

Proceeding in the matter of the application of Alvie Rice for a writ of habeas corpus. From an order denying the petition, petitioner appeals.

Affirmed.

Appeal from Superior Court, Pierce County; Fred G. Remann, judge.

Harry E. Foster, of Seattle, for appellant.

Smith Troy and R. Paul Tjossem, both of Olympia, for respondent.

STEINERT Justice.

This is an appeal from an order denying a petition for a writ of habeas corpus to obtain the release of the petitioner from detention in the Washington state penitentiary.

Appellant Alvie Rice, as petitioner instituted this proceeding originally in this court by filing an application therein for such writ. His petition alleged that since June, 1937, he has been wrongfully and unlawfully detained and imprisoned in the state penitentiary, without legal authority or warrant, but solely by virtue of an alleged judgment which is utterly void, and that his imprisonment is in violation of the Federal and State Constitutions. Attached to the petition and by reference made a part thereof, was a copy of the judgment.

Upon presentation of the petition, the chief justice referred the matter to the superior court for Pierce county and at the same time issued an order directing the superintendent of the state penitentiary to show cause Before that court, on a day fixed, why the petition should not be granted.

The superintendent in due time made a written return, alleging therein that on May 11, 1937, the appellant petitioner was by information filed in the superior court for King county, charged in court one thereof with the crime of carnal knowledge, in count two with the crime of incest, and in count three with the crime of contributing to the delinquency of a minor, as shown by a copy of the information attached to and made a part of the return; that thereafter the appellant was arraigned and, upon his plea of not guilty, was tried Before a jury and found guilty upon all three counts; that he was thereupon sentenced to confinement in the penitentiary, for a term of not more than twenty years on count one, for the term of ten years on count two and to confinement in the county jail for thirty-seven days on count three, such sentences to run concurrently; that subsequently, a warrant of commitment was issued; and that by virtue of such judgment, sentence, and commitment, the appellant has ever since been held in custody in the penitentiary.

The information referred to above in count one charged the appellant with the crime of carnal knowledge in that on March 29, 1937, he wilfully, unlawfully, and feloniously did carnally know and abuse a named female child, not his wife, of the age of fourteen years; in count two charged appellant with the crime of incest in that on the same day, and in the same manner, he did have sexual intercourse with the same child, who was his daughter; and in count three charged appellant with the crime of contributing to the delinquency of a minor, in that on the same day and in the same manner he did encourage, cause, and contribute to the delinquency of the same child by then and there taking indecent liberties with her.

The judgment, referred to in appellant's petition, entered June 19, 1937, recited that appellant, the defendant named in the judgment, on coming into court, with his counsel, was by the court duly informed of the nature of the information against him for the crimes above mentioned, of his plea, and of the trial and the verdict of the jury thereon, and was then and there asked whether he had any legal cause to show why judgment should not be pronounced against him, to which he replied that he had none. The judgment by its terms then declared the defendant guilty of each of the three crimes already mentioned, imposed the sentences set forth above, and ordered that the defendant be delivered into the custody of the proper officers to be transported to the penitentiary.

In response to the return thus made by the superintendent, appellant herein demurred thereto on the ground that it showed no legal excuse for his detention and moved for judgment directing the issuance of a writ of habeas corpus, for the reason that no issue had been tendered by the return. The matter then came on for hearing defore the court on the demurrer and, after argument by counsel, the court entered an order denying the petition for the writ. From that order, this appeal was taken.

In his assignments of error appellant avers (1) that the judgment and sentence are void; (2) that the court erred in refusing to discharge him from custody; and (3) that the court also erred in refusing to find that the sentencing court was without jurisdiction to enter the judgment of conviction.

Under these assignments, appellant contends, in his brief, that the judgment of conviction and sentence is void because (1) it does not contain the necessary jurisdictional recitals; (2) the sentence on count one (carnal knowledge) is ex post facto; (3) it does not show the section of the statute, or the particular subdivision thereof, under which the judgment was entered; and (4) it does not deraign any established facts showing the statutory mandates as to count two (incest). Upon the oral argument appellant made the additional contentions (a) that he was improperly charged with three offenses committed at the same time and place, and upon the same person; and (b) that the judgment failed to recite that he was an adult male person.

Appellant's contention numbered (1), as designated above, has been definitely disposed of by what we said with respect to an identical contention in the case of Ex parte Clark, Wash., 163 P.2d 577.

Appellant's second contention, designated (2) above, is that the sentence imposed upon him is ex post facto. This contention is predicated upon certain changes made in the statute relative to carnal knowledge.

The crimes with which appellant was charged, and of which he was convicted, were committed on March 29, 1937. The statute then in force relative to carnal knowledge was Rem.Rev.Stat. § 2436 (Laws of 1919, chapter 132, p. 368), which provided:

'Every male person who shall carnally know and abuse any female child under the age of eighteen years, not his wife, * * * shall be punished as follows:

'(1) When such child is under the age of ten years, by imprisonment in the state penitentiary for life;

'(2) When such child is ten and under fifteen years of age, by imprisonment in the state penitentiary for not less than five years;

'(3) When such child is fifteen and under eighteen years of age, by imprisonment in the state penitentiary for not more than ten years, or by imprisonment in the county jail for not more than one year.' (Italics ours.)

In 1937 the Legislature amended that section of the statute by enacting chapter 74, p. 321, Laws of 1937, Rem.Rev.Stat. (Sup.) § 2436, effective June 9, 1937, ten days prior to the entry of the judgment involved in this case. The later statute provided that every adult male person who shall...