Ludwick v. Webb
| Decision Date | 19 June 1945 |
| Docket Number | 29584. |
| Citation | 23 Wn.2d 115,160 P.2d 504 |
| Parties | LUDWICK v. WEBB, Superintendent of State Penitentiary. |
| Court | Washington Supreme Court |
Rehearing Denied July 21, 1945.
Department 1.
Proceeding in the matter of the application of H. G. Ludwick for a writ of habeas corpus directed to Bert O. Webb, Superintendent of the Washington State Penitentiary at Walla Walla, Wash. The Supreme Court referred the petition to the superior court of Washington for Spokane county for a hearing, and, from an order of that court dismissing his petition, petitioner appeals, and respondent moves to dismiss the appeal.
Appeal dismissed.
Appeal from Superior Court, Spokane County; Fred H. Witt, judge.
H. G Ludwick, of Walla Walla, pro se, for appellant.
Smith Troy and Rudolph Naccarato, both of Olympia, and Edward C Cross, Pros. Atty., of Ritzville, for respondent.
In this proceeding H. G. Ludwick made application to this court for a writ of habeas corpus, the basis of which was that on December 1, 1933, he was adjudged guilty of murder in the second degree by the superior court of Washington for Adams county without having been accorded a trial by jury. By an order of this court the petition for a writ of habeas corpus was referred to the superior court of Washington for Spokane county for a hearing thereon. The superintendent of Washington State Penitentiary, at which institution the petitioner was confined, filed an answer to the petition and upon a hearing Before the superior court it was denied. The petitioner has taken an appeal from the order dismissing his petition.
The record shows that on December 1, 1933, the appellant was in custody under a charge of murder in the second degree, to which charge he entered a plea of guilty and thereupon was adjudged to be guilty thereof and was sentenced to confinement to the State Penitentiary for a maximum and minimum term fixed by the court. No jury was impaneled to determine the degree of murder of which he was guilty. It is the contention of the appellant that the judgment and sentence was illegal and void because § 2116, Rem.Rev.Stat. was not applied to his case. This statute is as follows:
'If, on the arraignment of any person, he shall plead guilty, if the offense charged be not murder, the court shall, in its discretion, hear testimony, and determine the amount and kind of punishment to be inflicted; but if the defendant plead guilty to a charge of murder, a jury shall be impaneled to hear testimony, and determine the degree of murder and the punishment therefor.'
The respondent has filed a motion to dismiss the appeal upon the grounds that if this be deemed a civil proceeding the court has not acquired jurisdiction because the appellant has not filed an appeal bond as required by statute, and if it be treated as a criminal proceeding the notice of appeal was not given or filed within the time prescribed by the rules of court. The record shows that the order denying the petition for a writ of habeas corpus was entered on December 18, 1944, that a written notice of appeal was filed in the office of the clerk of the superior court on January 2, 1945, and that up to April 20, 1945, no appeal bond had been filed.
The question as to whether a habeas corpus proceeding is civil or criminal has been Before the courts in many cases and usually arises when the right to tax costs, or the right of appeal is being contested. In the cases considered costs might be taxable or a party have a right of appeal if the proceeding was civil, but would not if it was criminal. The prevailing view is...
To continue reading
Request your trial
-
Honore v. Washington State Bd. of Prison Terms and Paroles
... ... 142 (1906); State v. Fenton, 30 Wash. 325, 70 P. 741 (1902); State ex rel. Roberts v. Superior Court, 32 Wash. 143, 72 P. 1040 (1903); Ludwick v. Webb, 23 Wash.2d 115, 160 P.2d 504 ... Page 664 ... (1945); Summers v. Rhay, Supra; Little v. Rhay, 68 Wash.2d 353, 413 P.2d 15 (1966). In ... ...
-
Dill v. Zielke
...that no error was assigned in appellant's brief (the same situation in the case at bar) concerning the matter. In Ludwick v. Webb, 23 Wash.2d 115, 160 P.2d 504, 506, we held that as an appeal from an order denying a petition of a criminal inmate of the state penitentiary for a writ of habea......
-
State v. Hand
...Woodhouse v. Dore, 69 Wash.2d 64, 416 P.2d 670 (1966); State v. Riddell, 75 Wash.2d 85, 449 P.2d 97 (1968); see also Ludwick v. Webb, 23 Wash.2d 115, 160 P.2d 504 (1945) (dismissing appeal from habeas corpus ruling on grounds that habeas corpus is a civil proceeding and that appeal bond was......
-
Little v. Rhay
...is a Civil proceeding, since it is an original suit for the enforcement of the civil right of personal liberty. In re Ludwick v. Webb, 23 Wash.2d 115, 160 P.2d 504 (1945); See Fay v. Noia, 372 U.S. 391, 423, 424, 83 S.Ct. 822, 9 L.Ed.2d 837 It is apparent that use of affidavits in habeas co......