State v. Fenton

• Decision Date: 15 November 1902
• Court: Washington Supreme Court
• Parties: STATE v. FENTON.

70 P. 741

30 Wash. 325

STATE v. FENTON.

Supreme Court of Washington

November 15, 1902

Appeal from superior court, Snohomish county; John C. Denney, Judge.

Frank J. Fenton was convicted of an assault with intent to commit a felony, and appeals. Affirmed.

Appeal from a judgment in habeas corpus proceedings, adjudging defendant lawfully detained under a certain information, did not suspend prosecution of the information, nor does Ballinger's Ann.Codes & St. §§ 6506, 6529, providing for a stay of proceedings by appeal in civil and criminal cases contemplate such a stay.

Frank B. Wiestling, for appellant.

H. D Cooley, for the State.

DUNBAR, J.

The information upon which the appellant was convicted is as follows: 'Comes now H. D. Cooley, county and prosecuting attorney in and for Snohomish county, Washington, and by this his information accuses F. J. Fenton and Edward Costello of the crime of assault with intent to commit a felony committed as follows, to wit: That in the county of Snohomish and state of Washington, on the 19th day of October, 1901 said F. J. Fenton and Edward Costello, in and upon the person of one Oscar Combs unlawfully and feloniously did make an assault, with intent then and there unlawfully and feloniously by violence and putting in fear, from the person of him, the said Oscar Combs, the moneys, goods, and chattels of him, the said Oscar Combs, to take, steal, and carry away contrary to the form of the statute,' etc. A separate trial was demanded. Costello was tried, and, before the trial of appellant was reached, he (appellant) made application for a writ of habeas corpus before the superior judge of Snohomish county, alleging that he was unlawfully restrained of his liberty, because he had had no trial under said information, and more than 60 days' time had passed since the same was filed. Issue of fact was joined on said application for discharge by habeas corpus, and the superior court, on March 11, 1902, dismissed the petition, and remanded the petitioner to the custody of the sheriff of Snohomish county, to which exception was then and there taken by petitioner, and he then and there immediately gave notice in open court that he appealed therefrom to the supreme court of this state. This appeal is now pending. No supersedeas was requested, and none was granted. Upon giving the above notice of appeal, appellant moved the court for an order dropping this cause from the trial calendar, which was denied. The trial proceeded, and resulted in the conviction of the appellant. Judgment was pronounced, sentencing the defendant to imprisonment in the penitentiary for 12 years. From such judgment this appeal is taken.

The first error alleged is that the court erred in refusing to strike this case from the trial calendar, in overruling appellant's objection to proceed with the trial, and in going on with the trial and proceeding to judgment and sentence after notice of appeal to the supreme court had been given in the habeas corpus case. It is the contention of the appellant that, after the notice of appeal was given, the appellant was under the sole and exclusive jurisdiction of the supreme court; that the questions as to the validity of the information and the legality of his restraint are transferred to this court for determination, and the superior court ceases to have any jurisdiction over his person or over the subject-matter of the action; that, under such circumstances, the judgment and sentence of the lower court were coram non judice, and null and void; that the appeal from a judgment of remand in a habeas corpus case by the petitioner operates as a stay of all other proceedings, and all other processes, including the warrant under the information by which the appellant was being held, and that this court became at once the legal custodian of the appellant; and that the effect of the appeal was to place the case in the same position as if it was an original application to this court for habeas corpus. Appellant cites 9 Enc. Pl. & Prac. p. 1029, to the effect that a writ of habeas corpus issued by an appellate court acts as a supersedeas suspending the powers of the court below, and all proceedings had by an inferior court after the issuance of the writ are erroneous, and coram non judice; and 15 Am. & Eng. Enc. Law (2d Ed.) p. 213, to the effect that the writ of habeas corpus is paramount to and supersedes all other writs and processes under which the party may be detained. Of course, the first citation is literally true, for the object of a writ of habeas corpus is to suspend the operation of the lower court until the rights of the petitioner are determined thereunder. But that is where the writ issues out of the appellate court, and it is the common language of courts, as expressed in the second citation, that the writ of habeas corpus is paramount to and supersedes all other writs and processes under which the party may be detained. While this language is sweeping, however, an examination of the cases cited by the authors referred to, upon which the texts were founded, shows that the expressions quoted were not used in cases involving the principles involved in this contest. So with the cases from this court cited by appellant. These are cases where the appeal was taken in the habeas corpus case, and the principles discussed were in relation to errors committed in the trial of the habeas corpus case in the lower court. The one exception is the case of State v. Humason, 4 Wash. St. 413, 30 P. 718, but the decision in that case was based upon a section of the Revised Statutes of the United States which covered the case in point. This, unlike any other case, is the attempted injection of the habeas corpus proceedings into the trial of another case which is on appeal to this court. When the writ was denied by the lower court, and the applicant remanded, that was the end of the case, so far as the stay of the case then pending was concerned, and must necessarily be so to insure the orderly and effective administration of...