White v. Gladden

• Decision Date: 02 November 1956
• Citation: 209 Or. 53,303 P.2d 226
• Parties: Hudson Dodd WHITE, Appellant, v. Clarence T. GLADDEN, Warden of The Oregon State Penitentiary, Respondent.
• Court: Oregon Supreme Court

Page 226

303 P.2d 226

209 Or. 53

Hudson Dodd WHITE, Appellant, v. Clarence T. GLADDEN, Warden of The Oregon State Penitentiary, Respondent.

Supreme Court of Oregon.

Argued and Submitted Sept. 19, 1956.

Decided Nov. 2, 1956.

Merlin Estep, Jr., Salem, argued the cause for appellant. With him on the brief were Hewitt, Estep & Sorensen, Salem.

Peter S. Herman, Asst. Atty. Gen. for Oregon, argued the cause for respondent. With him on the brief was Robert Y. Thornton, Atty. Gen. for Oregon.

Before WARNER, C. J., and ROSSMAN, LUSK, BRAND, PERRY, and McALLISTER, JJ.

BRAND, Justice.

The plaintiff Hudson Dodd White brought a habeas corpus proceeding against Clarence T. Gladden, Warden of the State Penitentiary. From an adverse decision in the circuit court he now appeals. On 27 December 1954 the plaintiff filed in the circuit court for Marion County a petition for a writ of habeas corpus alleging that he is imprisoned by the Warden in the Oregon State Penitentiary, setting forth the facts on which he relies to establish the illegality of such imprisonment and praying for his release. The writ issued and the defendant warden filed his return wherein it was stated that the plaintiff is in custody pursuant to three separate judgment orders and sentences in the circuit court for Wallowa County and two judgment orders and sentences in the circuit court for Marion County. The return further stated that the aforesaid imprisonment has not been terminated. On 15 March 1955 an amended traverse was filed which attacked the validity of some of the sentences imposed and asserted that the term of plaintiff's legal imprisonment had expired. A demurrer to the traverse was overruled and the court set the case for trial on 3 August 1955. On that day the plaintiff filed a motion for an order adding the members of the Oregon State Board of Parole and Probation as parties defendant. The defendant moved to dismiss the proceeding. Both motions were based upon the fact that the plaintiff had been paroled from the Oregon State Penitentiary by an order signed on 27 June, effective the first day of August 1955. Attached to an affidavit of the Director of the Parole Board is a photostatic copy of the order of the Parole Board and the agreement pursuant thereto, signed by the plaintiff White. Also supporting the defendant's motion was the affidavit of the warden to the effect that on the first day of August a parole agreement was entered into between the Parole Board and the plaintiff. The warden further states that the plaintiff was discharged from the penitentiary and 'is no longer imprisoned or restrained by me as warden.' On 26 August the court denied plaintiff's motion to join the members of the Parole Board as defendants and allowed the defendant's motion to dismiss the proceeding. A judgment dismissing the proceeding was entered on 26 August and the plaintiff appeals therefrom. Certain of the provisions of the order of the Parole Board and of the agreement made thereunder must be noticed. The order contains the following recitation of fact:

'Whereas, On 2.15.39; 3.30.45 and 6.18.49 Hudson D. White was sentenced by the Judge of the Circuit Court of the State of Oregon, in and for the Counties of Wallowa & Marion, to imprisonment in the Oregon State Penitentiary for the crimes of sodomy (3 cts.); being a convict & possession of firearm; escape for a term of not to exceed 10, 10, 10, 2 and 1 CS years; and was received at said institution on the 2.17.39; 3.30.45; & 6.18.49; escaped & returned 1.15.45 and 2.21.49. (2 escapes)'.

Among the conditions specified in the order is the following:

'1. That this parole is granted to and accepted by the parolee subject to all its terms and conditions and with the understanding that the State Board of Parole and Probation may at any time, in case of violation of any of the terms of this parole, cause the parolee to be returned to the said institution to serve the remaining 13 years, 6 months, and 16 days of said sentence.

'2. That the parolee shall be under the legal custody and control of the Director of Parole and Probation of the State.

* * *

* * *

'13. That the parolee shall abide by all these conditions until a final discharge is entered.'

Immediately beneath the parole order there appears the following statement signed by the plaintiff:

'I have read, or have had read to me, and fully understand and accept the conditions, regulations and restrictions under which I am being released on parole. I will abide by and conform to them strictly, and fully understand that my failure to do so may result in revocation of my parole.'

In a memorandum opinion the trial court held that it was unnecessary to decide whether habeas corpus would lie in the case of a person who has been paroled from the penitentiary. The court expressed the opinion that the parole was offered to the plaintiff by the Board on the theory that his imprisonment was legal. We quote from the opinion:

'* * * His acceptance of the parole containing an agreement, among others, that if such parole were revoked he could be returned to prison 'to serve the remaining 13 years, 6 months, and 16 days of said sentence' should be accepted as a representation to the Parole Board that his sentences were valid. The Parole Board having acted in good faith should not now be compelled to litigate the question raised in the habeas corpus proceeding.'

The duly certified bill of exceptions in the habeas corpus case recites that the plaintiff appeared in person,

'unaccompanied by any guard or other official of the Oregon State Penitentiary. Whereupon, the Court made inquiry as to the Plaintiff's custodial status, and it was then and there stipulated in open court by the counsel for the respective parties that the Plaintiff had been paroled from the Oregon State Penitentiary on the 1st day of August, 1955, and it further appeared that neither of the parties had either obtained or requested leave of the Court for the Plaintiff's parole.'

We will briefly state the facts on which the plaintiff bases his claim that his term of imprisonment had expired at the time that the habeas corpus proceedings were brought. The entire record of the criminal proceedings against the plaintiff in Wallowa county was introduced by stipulation. We find three separate indictments against White as defendant, each charging the commission of the crime of sodomy. In all three indictments it is charged that the offense was committed on the 16th day of January, 1939, but a different child is named as the victim in each indictment. Three separate orders were signed by the circuit judge, each reciting an arraignment of the then defendant White. None of them expressly states to which of the three indictments the particular arraignment related. Three separate orders were signed by the trial judge reciting the receipt and entry of a plea of guilty. Again the record does not show to which of the three indictments each separate plea relates. On 14 February three judgments of conviction were made and signed by the trial judge. The wording in all three is identical. After the usual recitals, each judgment order continued, as follows:

'It is hereby considered, ordered and adjudged by the above named Court that the above named Defendant, Hudson Dodd White, be confined in the penitentiary at Salem, Oregon, for a period without limitation of time, the maximum of which is hereby fixed at ten years.

'The above named Defendant having been also convicted at this time of two additional crimes of sodomy and having received a like sentence for a period without limitation of time, the maximum of which is hereby fixed at ten years. It is hereby further ordered and adjudged that this sentence and such sentences run consecutively.'

While it is unfortunate that the three orders on arraignment, the three orders on the plea of guilty, and the three judgment orders, were not in each case tied to one of the three indictments, nevertheless, the inference is clear that the court in entering three separate judgments intended that they should apply to the only three indictments then outstanding against defendant White. The plaintiff, in the habeas corpus proceeding, contended, in substance, that the defendant had been sentenced only once and for ten rather than 30 years. His second contention was that if the record of imprisonment was for 30 years he was entitled to show by evidence dehors the record that he was never arraigned upon more than one of the indictments. If the case were to be tried upon the merits, a nice question would arise as to whether, in view of the record to which we have referred, the plaintiff would be entitled to show by oral evidence that he was only arraigned upon one indictment or that he was only sentenced for one crime. We have held that the recitals in the orders of the court import absolute verity. Huffman v. Alexander, 197 Or. 283, 251 P.2d 87, 253 P.2d 289. We think, however, that the question is not before us on this appeal.

The only assignment of error is as follows:

'The Court erred in denying the appellant's motion to add the members of the Parole Board as parties defendant, in denying the appellant a hearing and decision upon the issues raised by the pleadings, and in dismissing the case because of appellant's parole from prison after the case was at issue but before trial.'

The question presented by the briefs of both parties is whether a person on parole is entitled to bring habeas corpus.

The statute must be read in the light of decisions construing it. It reads as follows:

'The writ of habeas corpus ad subjiciendum is the writ designated in ORS 34.310 to ORS 34.730, and every other writ of habeas corpus is abolished. Every person imprisoned or otherwise restrained of his liberty, within this state, except in the cases specified in ORS 34.330, may prosecute a writ of habeas corpus to inquire into the cause of such imprisonment or restraint, and if illegal,...