Puckett v. Smith, 30048.

• Decision Date: 05 October 1946
• Docket Number: 30048.
• Citation: 26 Wn.2d 194,173 P.2d 171
• Parties: PUCKETT v. SMITH, Superintendent of State Penitentiary.
• Court: Washington Supreme Court

173 P.2d 171

26 Wn.2d 194

PUCKETT v. SMITH, Superintendent of State Penitentiary.

No. 30048.

Supreme Court of Washington

October 5, 1946

Department 1

Proceeding in the matter of the application for a writ of habeas corpus by Edward Puckett against Tom Smith, Superintendent of the Washington State Penitentiary.

Writ denied.

Edward Puckett, of Walla Walla, per se.

Smith Troy and Edward J. Lehan, both of Olympia, for respondent.

ROBINSON Justice.

On August 16, 1946, the then chief justice of this court, having examined the application and petition of Edward Puckett for a writ of habeas corpus, ordered the respondent to show cause Before this court on Thursday, September 12, 1946, why the petition should not be granted. On August 26th, the respondent filed a demurrer to the petition, on the grounds that:

'* * * said application and petition do not on their face state any grounds to cause the writ of habeas corpus to issue.'

The matter came on for hearing on the date fixed in the show cause order.

The petition, by way of introduction, alleges that the petitioner is illegally imprisoned, detained, and restrained of his liberty by the respondent, and in support of that conclusion alleges:

'II. That the cause of, or pretense of such illegal and unlawful imprisonment is by virtue of two certain judgments and sentences entered by the Superior Court of the State of Washington in and for Lewis County in Cause No. 1178 and Cause No. 1188, copies of said judgments and sentences being attached hereto and marked 'Exhibit A' and 'Exhibit B,' and made a part hereof by reference.

* * *

* * *

'IV. That said judgments and sentences are void and illegal inasmuch as they set forth terein minimum sentences in excess of that set by law, to wit, five year minimum provided by law.'

Duly authenticated copies of the two judgments are Before us. The judgment in Cause No. 1178 sentences the petitioner to the state penitentiary, of which the respondent is the superintendent, for the crime of robbery:

'* * * for an indeterminate term; not less than twenty (20) years, nor more than twenty-five (25) years * * *.'

The judgment in Cause No. 1188 sentences the petitioner to the same penal institution for the crime of robbery for:

'* * * not less than fifteen and not more than eighteen years * * *.'

These sentences were to run consecutively. The judgments and sentences were entered in 1933; that is, thirteen years preceding this application. The petitioner contends that these judgments are void because they fix minimum sentences in excess of those required by law, to wit, five years, and asserts that, since he has in fact served more than five years on each of said judgments and sentences, he is now unlawfully detained.

The judgments and sentences involved in the instant case were imposed for the crime of robbery. Laws of 1909, chapter 249 p. 938, § 166, Rem.Rev.Stat. § 2418, defines the crime of robbery, and provides that:

'Every person who shall commit robbery shall be punished by imprisonment in the state penitentiary for not less than five years.' (Italics ours.) There is no merit in petitioner's contention. In State v. McMullen, 142 Wash. 7, 252 P. 108, 109, the appellant was convicted of carnally knowing a female child 'between the ages of 12 and 13 years,' and sentenced to the penitentiary for a term of 'not less than 8, nor more than 15, years.' The judgment was upheld upon appeal, although the statute (Laws of 1919, chapter 132, p. 368, § 1, Rem.Rev.Stat. § 2436) provided that the perpetrator of that crime should be punished as follows:

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

See, also, State v. Whidden, 144 Wash. 511, 258 P. 318.

The case of State ex rel. Scaggs v. Superior Court, 169 Wash. 292, 13 P.2d 1086, 1087, is especially in point because, in that case, the court was reviewing a decision of a lower court denying an application for a writ of habeas corpus. Scaggs, on a plea of guilty to an information charging him with murder in the second degree, was sentenced to confinement in the state penitentiary 'for not...