Rickert, In re
| Citation | 203 A.2d 602,124 Vt. 232 |
| Decision Date | 14 September 1964 |
| Docket Number | No. 1990,1990 |
| Parties | In the Matter of Wilbur J. RICKERT, Jr. |
| Court | United States State Supreme Court of Vermont |
John E. Bernasconi, State's Atty., Montpelier, for the State.
John B. Harrington and Richard Schmidt, Burlington, for respondent.
Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and SYLVESTER, JJ.
The petitioner Wilbur J. Rickert, Jr., seeks his release from the Vermont State Prison at Windsor, Vermont by habeas corpus. The petition for the writ has been challenged by a motion to dismiss filed by the State of Vermont on behalf of Robert G. Smith, Warden of the Vermont State Prison. The grounds of the motion are three-fold; in that the petition, (a) fails to name or describe the person by whom the petitioner is being detained; (b) fails to state facts upon which the prisoner bases his allegations of unlawful restraint, and (c) that an appeal to the Vermont Supreme Court from proceedings in the Chittenden County Court is now pending.
During the September Term, 1963, of the Chittenden County Court the petitioner was convicted by a jury on three felony counts of obtaining property by false token in violation of 13 V.S.A. § 2002. The prisoner was sentenced on December 12, 1963 to serve not less than two years nor more than five years on each count. It was provided that the sentences on each count were to run concurrently. The petitioner first moved in county court for a stay of execution pending his appeal from the conviction. At time of sentence the trial court, in its discretion, acting under the authority of 13 V.S.A. § 7401 denied the application for a stay of execution and ordered the issuance of a mittimus for the prisoner's confinement in the State Prison in accordance with the sentence. The petitioner has since been and is now confined in the Vermont State Prison.
The present petition is the most recent of several applications by the petitioner to obtain release from confinement prior to appellant review in this Court of the judgment of conviction. By this last petition seeking a writ of habeas corpus the petitioner merely alleges that he is confined 'without law or right' and that his 'imprisonment is illegal in that the judgment is not authorized by law, said judgment wilfully and flagrantly disregards Vermont State statutes and the due process clause.' No facts are stated in the petition in support of these conclusionary contentions.
The motion to dismiss challenges the sufficiency of the petition by stating that it fails to name of describe the person by whom the petitioner is being detained. It is the well acknowledged practice that such a petition should show the place of imprisonment, the persons who exercise the restraint, naming them if they are known, or describing them if they are not known. 25 Am.Jur. Habeas Corpus, § 125, page 236. It is equally true that such a petition, by a person in restraint, should not be held to the intricacies and pitfalls of strict practice and procedure, or be scrutinized with technical nicety. 39 C.J.S. Habeas Corpus § 80c page 626. Holiday v. Johnston, 313 U.S 342, 350, 61 S.Ct. 1015, 85 L.Ed. 1392. Here the petitioner sets forth his confinement in the State Prison, at Windsor, Vermont. In the jurat signed by Daniel E. Kesman, as judge of the Windsor Municipal Court, Robert G. Smith is described as the Warden of the Vermont State Prison by whom the petitioner is now held in custody. We deem this sufficient. On this point the motion to dismiss fails.
By the motion to dismiss it is claimed that the petition is insufficient for its failure to state facts upon which the prisoner bases his allegations of unlawful restraint. On this point we refer to 12 V.S.A. § 3955 which in part provides: 'The facts set forth in the complaint shall be verified by the oath of the person making the application or by that of some credible witness.'
As previously stated the petition merely sets forth conclusions of illegal restraint, without a statement of facts relied upon in support thereof. As a general rule, conclusions of law are insufficient and facts must be recited to support the conclusions of law. 39 C.J.S. supra. § 80. The petitioner should plead what he relies on. Facts, as distinguished from mere conclusions, should be stated. Thus a general allegation that petitioner is imprisoned and restrained without due process of law, without a statement of specific facts in support of the legal conclusions, is insufficient. 39 C.J.S. supra. § 80c, pages 625-626-627. The petition should set forth such facts as to make a prima facie case for relief. 25 Am.Jur. supra, § 131, page 238.
By reference to the case of In Re Turner, 92 Vt. 210, 212, 102 A. 943, 944, we find this language, 12 V.S.A. § 3956 provides that upon presentation of a complaint for a writ that '[w]ithout delay, such court or magistrate shall award and issue a writ of habeas corpus, which shall be made returnable forthwith.' It is our opinion that the foregoing presupposes that a proper complaint or petition has been presented supplying the facts relied upon.
As stated in 25 Am.Jur., supra, § 131, 'While habeas corpus is a writ of right, it will not issue as a matter of course or as a mere perfunctory operation upon the filing of the petition; judicial discretion is exercised in its issuance, and such facts must be made to appear to the judge to whom the petition is presented as, in his judgment, prima facie, entitled the petitioner to the writ.' This view is consistent with 12 V.S.A. Chapter 143, and more particularly in harmony with section 3955 thereof. This section provides that 'facts set forth in the complaint shall be verified.'
The prisoner has attached to his petition a brief and statement of the case setting forth facts relied upon. During the hearing of this petition by this Court, at which time the petitioner was personally present, and also represented by counsel, it was conceded that all claims of error can be presented to this Court on petitioner's appeal from the conviction, with the possible exception of the denial of the stay of execution.
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