Mohr v. Smith, 30010.

• Decision Date: 05 October 1946
• Docket Number: 30010.
• Citation: 173 P.2d 141,26 Wn.2d 188
• Parties: MOHR v. SMITH.
• Court: Washington Supreme Court

173 P.2d 141

26 Wn.2d 188

MOHR v. SMITH.

No. 30010.

Supreme Court of Washington

October 5, 1946

Department 2

Original proceeding in the matter of the application of William H Mohr for writ of habeas corpus directing Tom Smith Superintendent of the Washington State Penitentiary, to release petitioner from further custody. On demurrer to the petition.

Demurrer sustained and application denied.

William H. Mohr, per se.

Smith Troy and George H. Holt, both of Olympia, for respondent.

STEINERT Justice.

William H. Mohr recently filed in this court his petition alleging that he was illegally imprisoned, detained, and restrained of his liberty in the Washington state penitentiary, and praying that a writ of habeas corpus issue directing the superintendent of the penitentiary to release him from further custody. The superintendent appeared by the attorney general and demurred to the petition on the ground that the petitioner's pleading did not state any facts sufficient to warrant the issuance of such writ.

The proceedings under which the petitioner was sentenced to life imprisonment and which he now contends are unconstitutional and without due process of law are set forth in his petition to which are attached, as parts thereof, the judgment of his conviction and sentence to life imprisonment and the supplemental information on which such sentence is based. From the record thus brought to this court by petitioner, the following facts, stated in chronological order, appear.

On or about February 21, 1935, in the state of Nebraska, petitioner was convicted of the crime of removing mortgaged property. On or about May 6, 1936, in that same state, he was convicted of the crime of forgery. On or about December 27, 1937, in the state of Washington, he was again convicted of the crime of forgery. On or about January 4, 1938, in the state of Idaho, he was for the third time convicted of the crime of forgery. All of these crimes of which petitioner was convicted constitute felonies under the laws of the state of Washington.

A short time prior to February 8, 1946, petitioner was by information, filed by the prosecuting attorney for Thurston county, in this state, charged with the commission of the crime of attempted rape. Upon his arraignment on the last mentioned charge, he pleaded guilty. Immediately thereafter, the prosecuting attorney filed in information charging petitioner with being an habitual criminal. Petitioner at once pleaded guilty on that charge. The judgment of conviction and sentence of which he now complains was thereupon entered by the court.

The judgment which is now under attack recites that, upon his arraignment, petitioner was served with a certified copy of the information, which was then and there read to him in open court; that petitioner was advised by the court that he was entitled to the services of an attorney and that the court would appoint an attorney for him if he so desired; that petitioner declined the offer; that, upon being asked whether he was ready to plead, he replied in the affirmative and entered a plea of guilty to the charge contained in the information; and that thereupon the court adjudged the petitioner guilty of the crime of attempted rape.

The judgment further recites that immediately after petitioner had entered his plea of guilty to the charge of attempted rape, and Before sentence was pronounced thereon, a supplemental information charging him with being an habitual criminal and reciting as a basis therefor the four prior convictions set forth above was in open court read to him and a certified copy thereof then and there handed to him; that the petitioner thereupon entered his plea of guilty to that charge, admitting the truth thereof; and that the court, having adjudged the petitioner to be an habitual criminal, sentenced him to imprisonment in the penitentiary for life.

The crime of attempted rape, which was the substantive offense upon which petitioner was sentenced, is a felony under the laws of this state. Rem.Rev.Stat. §§ 2263, 2264.

Petitioner has not filed any brief in the present proceeding, and we must therefore divine his contention solely from his petition. He alleged therein that his imprisonment and restraint are without due process of law and in violation of his rights under the constitution of the state of Washington and of the Sixth and Fourteenth Amendments to the Constitution of the United States, for the reason 'That in a supplemental information [a copy of which is attached to and made a part of the petition, and is fully referred to above] filed in said cause petitioner in Count One thereof was charged with having been convicted in the Superior Court of the State of Washington for Grays Harbor County, on or about the 27th day of December, 1937, upon his plea of guilty in a fit of rage, all as shown by a copy of said Supplemental Information attached hereto and marked 'Exhibit B' and made a part hereof by reference.' (Italics ours.)

Petitioner then further alleged that he was never convicted in Grays Harbor county, on or about December 27, 1937, and that therefore he could not have been found to be an habitual criminal.

There are several answers to petitioner's contention. In the first place, if any consideration is to be given to the fact as alleged by him, that his plea of guilty to the Grays Harbor county charge was entered by him 'in a fit of rage,' that fact does not appear, as he asserts, in the supplemental information, a copy of which is attached to his petition. On the contrary, the supplemental information recites that petitioner 'on or about the 27th day of December, 1937, and in the...