Rogers v. Best

• Decision Date: 29 July 1946
• Docket Number: 15770.
• Citation: 115 Colo. 245,171 P.2d 769
• Parties: ROGERS v. BEST, Warden.
• Court: Colorado Supreme Court

171 P.2d 769

115 Colo. 245

ROGERS v. BEST, Warden.

No. 15770.

Supreme Court of Colorado, en Banc.

July 29, 1946

Original proceedings by Harry Rogers against Roy Best, as warden of the Colorado State Penitentiary, for a writ of habeas corpus.

Petition dismissed.

Supreme Court will not exercise original jurisdiction when the question may be properly submitted and determined and the rights of the petitioner fully protected and enforced in the lower court.

John W Elwell, of Pueblo, for petitioner.

No appearance for respondent.

ALTER Justice.

Harry Rogers began an action in this court seeking an 'original writ of habeas corpus' against Roy Best as warden of the state penitentiary, and in the 'application' for which he alleged that he was unlawfully imprisoned and restrained of his liberty.

The parties will be referred to as petitioner and respondent.

In the 'application' it is alleged that petitioner was informed against in the district court of Pueblo county in two separate informations charging him with aggravated robbery, to both of which informations he entered his plea of guilty.On the 26th day of October, 1937, judgment was pronounced, and he was sentenced to imprisonment for life on each of the two charges, the sentences to run concurrently.It is further alleged that by reason of the fact that no minimum, as well as maximum, sentences were imposed under the provisions of section 545, chapter 48, '35 C.S.A.petitioner is now entitled to a parole.It is also alleged in his 'application' that he has no plain, speedy or adequate remedy at law in the premises.

Rule 106(a), R.C.P.Colo., abolishes the special forms that have heretofore been considered necessary and peculiar to the writ of habeas corpus, and relief may now be obtained either by an action or by a motion under the new practice set up in these rules.Under rule 116, R.C.P.Colo., we find, 'A party seeking to invoke the original jurisdiction of the supreme court shall set forth in his complaint the circumstances which render it necessary or proper that the supreme court exercise its original jurisdiction.Cases in which the court exercises such jurisdiction shall be governed by these rules subject to the power of the court to prescribe different procedure. * * *'

Under the provisions of chapter 77, '35 C.S.A., district courts have original jurisdiction in such remedial proceedings.

The 'application' herein is fatally...