Nahl v. Delmore

• Decision Date: 13 September 1956
• Docket Number: No. 33554,33554
• Citation: 49 Wn.2d 318,301 P.2d 161
• Court: Washington Supreme Court
• Parties: In the Matter of the Application for a Writ of Habeas Corpus of Roy Edvir NAHL, Petitioner, v. Lawrence DELMORE, Jr., as Superintendent of the Washington State Penitentiary at Walla Walla, Washington, Respondent.

Page 318

49 Wn.2d 318

301 P.2d 161

In the Matter of the Application for a Writ of Habeas Corpus

of Roy Edvir NAHL, Petitioner, v. Lawrence DELMORE, Jr., as Superintendent of the Washington

State Penitentiary at Walla Walla, Washington, Respondent.

No. 33554.

Supreme Court of Washington, Department 2.

Sept. 13, 1956.

Simmons & Yates, Seattle, for petitioner.

Michael R. Alfieri, Asst. Atty. Gen., for respondent.

WEAVER, Justice.

This is a petition for a writ of habeas corpus filed by Roy Edvir Nahl.

July 16, 1952, petitioner was charged in King county with first degree burglary and second degree assault. Before trial of these charges, a hearing was instituted to determine his mental condition. During the progress of this trial before a jury, petitioner pleaded guilty to second degree assault. The hearing to determine his mental condition was discontinued and the charge of burglary was dismissed. October 28, 1952, judgment and sentence were filed, and the warrant of his commitment to the penitentiary was issued.

January 6, 1953, petitioner filed his first petition for a writ of habeas corpus. An amended petition was filed November 3, 1953. At the hearing in this court on January 15, 1954, it appeared that petitioner was in Eastern State Hospital at Medical Lake, Washington. January 22, 1954, an order was entered which, among other things, stated:

'The members of the court are further of the opinion that justice requires this proceeding be sent to the Superior Court of Washington for Spokane County for a hearing and determination of the mental status of petitioner, and it is so ordered:

'It is further ordered that in the event it should be determined by the Superior Court that petitioner is sane and not a subject for mental treatment, he be remanded to the custody of the respondent [superintendent of Washington State Penitentiary]; and

'It is further ordered that in the event of remand of petitioner to the custody of respondent, it shall be without prejudice to petitioner to have determined by this court whether he shall be permitted to withdraw his plea of guilty and stand trial on one or both of the charges heretofore made against him.'

Pursuant to this order, the superior court of Spokane County held its hearing at Eastern State Hospital. Dr. Robert H. Southcombe, superintendent of the hospital, testified that petitioner had been transferred to the hospital April 22, 1953,

'* * * by order emanating from the Department of Public Institutions in Olympia * * *'

The trial court, having found petitioner to be a paranoid schizophrenic, entered conclusions of law

'I. That the petitioner is mentally irresponsible, is not a safe person to be at large and is not capable of conducting any legal proceedings in his own behalf.

'II. That the petitioner, as a result of his condition, should remain in the care, custody and control of the authorities of the Eastern State Hospital for the insane at Medical Lake, Washington.'

The order of this court of January 22, 1954, is silent as to petitioner's rights in the event the superior court of Spokane county found him to be insane. November 4, 1955, the present petition for writ of habeas corpus was filed. The crux of the petition is that his plea of guilty was not voluntary; that it was equivocal; that it was the result of coercion arising from the circumstances surrounding it; and that his constitutional rights were thus violated.

Respondent Lawrence Delmore, Jr., superintendent of the Washington State Penitentiary, has moved to dismiss the petition. He advances four reasons in support of his motion: (1) that Edna C. Nahl, who verified the petition, makes no showing that she is legal guardian of the petitioner and is without legal capacity and authority to prosecute the petition; (2) that petitioner does not have the mental capacity to prosecute his petition; (3) that the petitioner is an inmate at the Eastern State Hospital at Medical Lake, Washington; and (4) that petitioner is not in the custody of respondent.

Respondent's motion to quash the petition amounts to a demurrer. We so consider it. We assume the truth of those facts which are well pleaded for the purpose of testing the sufficiency of the petition.

Respondent's first contention--that Edna C. Nahl, who verified the petition, is without legal capacity and authority to prosecute the petition--is without merit. Her verification, as the 'natural mother of the Petitioner,' states:

'* * * that she has the authority and right to verify said petition for and on behalf of the above named Petitioner, by nature, law and permission.'

Her right to prosecute the petition is authorized by statute.

RCW 7.36.030 provides:

'Application for the writ [of habeas corpus] shall be made by petition, signed and verified either by the plaintiff or by some person in his behalf * * *.' (Italics ours.)

If a person claims to be restrained of his liberty by judicial process, which he alleges violated his constitutional rights, his subsequent mental illness does not foreclose the right of 'some person in his behalf' testing the validity of his confinement in the penitentiary by petition for a writ of habeas corpus.

RCW 7.36.020 provides:

'Writs of habeas corpus shall be granted in favor of parents and guardians, [masters and husbands, and] to enforce the rights and for the protection of infants and insane persons; * * *.' (Bracketed words appear and italicized words do not appear in the original statute. See Laws of 1854, p. 214, § 456; Code of 1881, § 688.)

Hence, the petition before us, which attacks the King county judgment and sentence of October 28, 1952 (as distinguished from his confinement in the Eastern State Hospital), is not subject to respondent's motion to strike upon the ground that petitioner does not have the mental capacity to prosecute it.

It appears to be a rule of general application that the person who has custody of a prisoner, and who is exercising actual restraint of his person, and who has the power to produce him physically, is the one to whom the writ of habeas corpus should be directed. See Durham v. Callahan, 1953, 42 Wash.2d 352, 356, 255 P.2d 374; In re Wyback, 1949, 32 Wash.2d 780, 203 P.2d 1083; Jones v. Biddle, 8 Cir., 1942, 131 F.2d 853, 854, certiorari denied 318 U.S. 784, 63 S.Ct. 856, 87 L.Ed. 1152; United States ex rel. Goodman v. Roberts, 2 Cir., 1946, 152 F.2d 841; 25 Am.Jur. 158; 39 C.J.S., Habeas Corpus, § 77, p. 622.

The record discloses that petitioner is in the actual custody of the superintendent of Eastern State Hospital, by order of the department of public institutions, and not in the custody of respondent. The statute, by virtue of which petitioner was transferred from the penitentiary to the hospital, provides:

'The superintendent of the hospital for insane shall receive such convict, and keep him until cured. * * *' RCW 72.08.110. (Italics ours.)

Under the statute, respondent's only interest in actual custody will arise upon petitioner's cure or discharge from the hospital, prior to the expiration of his sentence.

Since the superintendent of the hospital is not a party, it is apparent that nothing which may transpire under the present petition for a writ of habeas corpus can affect petitioner's status as an inmate of Eastern State Hospital. We express no opinion on the question of whether a petition for a writ of habeas corpus is or...