Sorenson v. Smith, 31050.

• Decision Date: 01 September 1949
• Docket Number: 31050.
• Citation: 34 Wn.2d 659,209 P.2d 479
• Court: Washington Supreme Court
• Parties: SORENSON v. SMITH.

209 P.2d 479

34 Wn.2d 659

SORENSON v. SMITH.

No. 31050.

Supreme Court of Washington

September 1, 1949

Department 2

Belmont Sorenson filed an original petition against Tom Smith Superintendent of the Washington State Penitentiary at Walla Walla, Washington, for a writ of habeas corpus to obtain his release from custody.

The petitioner pleaded guilty to an information charging him with obtaining from another possession and title to personalty by the aid of a check for $33.40, but no allegation as to the value of the property obtained was contained therein.

The Supreme Court, Schwellenbach, J., directed that the petitioner be resentenced, holding that the crime charged constituted petit larceny and not grand larceny, making sentence as for a felony, invalid.

Simpson C.J., dissented.

Belmont Sorenson, pro se.

Smith Troy, C. John Newlands, Olympia, John D. Blankinship Olympia, for respondent.

SCHWELLENBACH Justice.

Belmont Sorenson filed an original petition in this court for a writ of habeas corpus, alleging that he was restrained of his liberty in the state penitentiary under and by color of a purported judgment, sentence and commitment, issued out of the superior court for Pierce county, which judgment and sentence was void and of no legal effect. The chief justice thereupon ordered respondent to show cause why the petition should not be granted. In response to the show cause order, respondent demurred to the petition on the ground that the petition did not state any grounds to cause the writ to issue. Attached to the demurrer were certified copies of the information, and judgment and sentence.

The judgment and sentence recited among other things: '* * * said Defendant Belmont Sorenson being brought to the bar of the court for arraignment, charged with the crime of Larceny by Check committed on or about the 15th day of October, 1943; the information having been read to the defendant by the Prosecuting Attorney, * * * and the court then being advised by the Defendant that he understood the nature of the proceedings and was willing and ready to enter his plea, said Defendant was then arraigned and entered his plea of guilty of the offense charged in the information. * * * That whereas the said Defendant has regularly entered a plea of guilty in this court of the crime of Larceny by Check it is thereupon, now here, Ordered, Adjudged and Decreed that the said Defendant Belmont Sorenson, is guilty of the crime of Larceny by Check, and that he be punished therefor by confinement at hard labor in the Penitentiary of the State of Washington for the indeterminate term of not more than fifteen years * * *'

Although we are not permitted in habeas corpus proceedings to examine the information, where the judgment is regular on its face, In re Grieve, 22 Wash.2d 902, 158 P.2d 73, still, when it is impossible to ascertain from the judgment the precise charge on which the petitioner was sentenced, it is permissible for us to examine the judgment in connection with the record in which it is entered. In re Clark, 24 Wash.2d 105, 163 P.2d 577. This is particularly so when not only the judgment but also the information is made a part of the return to the show cause order, as was done in this case. The judgment recited that the petitioner was guilty of the crime of 'Larceny by Check.' There is no statute designating Larceny by Check' a crime and we therefore find it necessary to examine the information in order to ascertain what the charge actually was.

The information charged the defendant with the crime of 'Larceny by Check' in that he did, on or about the 15th day of October, 1943, 'with intent to deprive and defraud the owner thereof, obtain from the owner, to-wit: Boyle's Pharmacy, possession of and title to personal property, by color and aid of a check drawn on the Puget Sound National Bank of Tacoma, Washington, dated October 15, 1943, for the amount of $33.40, signed by the said Belmont Sorenson, knowing at the time of making, drawing, and delivering said check that he, the said Belmont Sorenson, was not authorized or entitled to make or draw the same because at the time he had no account nor credit in said bank.'

Rem.Rev.Stat. § 2601, defines 'larceny':

'Every person who, with intent to deprive or defraud the owner thereof----

'(1) Shall take, lead or drive away the property of another; or

'(2) Shall obtain from the owner or another the possession of or title to any property, real or personal, by color or aid of any order for the payment or delivery of property or money or any check or draft, knowing that the maker or drawer of such order, check or draft was not authorized or entitled to make or draw the same, or by color or aid of any fraudulent or false representation, personation or pretense or by any false token or writing or by any trick, device, bunco game or fortune-telling; * * *

'Steals such property and shall be guilty of larceny.'

Rem.Rev.Stat. § 2605, provides the penalty therefor:

'Every person who shall steal or unlawfully obtain, appropriate, bring into this state, buy, sell, receive, conceal, or withhold in any manner specified in section 2601 * * *

'(5) Property of the value of more than twenty-five dollars, in any manner whatever,

'Shall be guilty of grand larceny and be punished by imprisonment in the state penitentiary for not more than fifteen years.

'Every other larceny shall be petit larceny and shall be a gross misdemeanor.'

In 1915 the legislature enacted Rem.Rev.Stat. § 2601-2: 'Any person who shall with intent to defraud make, or draw, or utter, or deliver to another person any check, or draft, on a bank or other depository for the payment of money, knowing at the time of such drawing, or delivery, that he has not sufficient funds in, or credit with said bank or depository to meet said check, in full upon its presentation shall be guilty of larceny. The word 'credit' as used...