Whipple v. Smith

• Decision Date: 27 May 1949
• Docket Number: 30894.
• Citation: 206 P.2d 510,33 Wn.2d 615
• Court: Washington Supreme Court
• Parties: WHIPPLE v. SMITH, Superintendent of Penitentiary.

206 P.2d 510

33 Wn.2d 615

WHIPPLE v. SMITH, Superintendent of Penitentiary.

No. 30894.

Supreme Court of Washington

May 27, 1949

Department 1

Habeas corpus proceeding by Howard Whipple against Tom Smith, as Superintendent tendent of the Washington State Penitentiary at Walla Walla. From an order refusing to issue a writ, the petitioner appeals.

Affirmed.

Appeal from Superior Court, Lincoln County; C. A. Pettijohn, judge.

Howard Whipple (per se), in the Penitentiary at Walla Walla.

Smith Troy, Paul Sinnett, Olympia, for respondent.

MALLERY Justice.

The petitioner, an inmate of the Washington state penitentiary at Walla Walla, applied to this court for a writ of habeas corpus, alleging that he was being held under a judgment and sentence by a justice of the peace and that the warden of the penitentiary was without authority to hold him for want of a warrant of commitment.

Rules of the supreme court number 29 provide among other things as follows:

'(1) Any judge of this court may issue writs of habeas corpus, returnable Before himself or this court, or any superior court or any judge thereof; or may make an order to show cause why the writ should not issue returnable Before this court, or any judge thereof, or Before any superior court, or any judge thereof.

'(2) Unless there be special reasons to the contrary, writs of habeas corpus, will be issued by this court only after a hearing upon an order to show cause. * * *' (Italics ours.)

Because of the factual allegations of the petition this court issued its order to show cause returnable Before the superior court of Lincoln county where petitioner had been convicted and sentenced. The petitioner thereupon sought an order from the superior court of Lincoln county to produce him in that court on the return day as a witness for himself. The superior court refused to issue such an order. Upon the return day it was established that the petitioner was not being confined in the penitentiary at Walla Walla by virtue of a judgment and sentence by a justice of the peace. On the contrary the judgment and sentence, regular upon its face, was issued out of the superior court for Lincoln county. Accordingly, the court denied the petition for a writ of habeas corpus and from the order of denial the petitioner appeals. He assigns as error the refusal to issue the writ of habeas corpus when it appeared that there was no warrant of commitment in the return to the show cause order and upon the further ground that it was error to refuse to require the production of the appellant Before the court to give testimony as a witness for himself and to act as his own attorney.

In Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 578, 85 L.Ed. 830, interpreting the pertinent federal statute, the court stated:

'It will be observed that if, upon the face of the petition, it appears that the party is not entitled to the weit, the court may refuse to issue it. Since the allegations of such petitions are often inconclusive, the practice has grown up of issuing an order to show cause, which the respondent may answer. By this procedure the facts on which the opposing parties rely may be exhibited, and the court may find that no issue of fact is involved. In this way useless grant of the writ with consequent production of the prisoner and of witnesses may be avoided where from undisputed facts or from incontrovertible facts, such as those recited in a court record, it appears, as matter of law, no cause for granting the writ exists. * * * This practice has long been followed by this court and by the lower courts.'

The practice in this state is consonant with the federal practice. Under our rule, upon the filing of a petition for a writ of habeas corpus, unless there be special reasons to the contrary, only an order to show cause is issued. Even an order to show cause will not be issued unless upon the face of the petition a prima facie case of merit is made out. See Fathers v. Smith, 25 Wash.2d 896, 171 P.2d 1012; 25 Am.Jur. 153 Habeas Corpus, § 16.

The appellant's contention that his incarceration is illegal for want of a warrant of commitment is without merit. Rem.Rev.Stat. § 2207, P.P.C. 134-33, provides as follows:

'When any person shall be sentenced to be imprisoned in the penitentiary or county jail, the clerk of the court shall, as soon as may be, make out and deliver to the sheriff of the county, or his deputy, a transcript, from the minutes of the court, of such conviction and sentence, fully certified by such clerk, which shall be sufficient authority for such sheriff to execute the sentence, who shall execute it accordingly.'

There is no other statute touching anything that might be called a 'warrant of commitment'. This statute is clear upon its face and in addition it has been interpreted in State v. Hatfield, 66 Wash. 9, 118 P. 893, 38 L.R.A.,N.S., 609, against appellant's contention. Appellant is being held by the warden of the penitentiary by virtue of a valid judgment and sentence of the superior court and...