16 Wn.2d 708, In the Matter of the Petition of EDWARD J. COLLINS for a Writ of Habeas Corpus

[No. 28971. Department One.      Supreme Court      February 4, 1943.]

In the Matter of the Petition of EDWARD J. COLLINS for a Writ of
                               Habeas Corpus.1

Application filed in the supreme court December 16, 1942, for a writ of habeas corpus. Denied conditionally.

Edward J. Collins, pro se.

The Attorney General, Harold A. Pebbles, and R. A. Moen, Assistants, and Lloyd L. Wiehl, for respondent.

PER CURIAM. -

Edward J. Collins has applied to this court for a writ of habeas corpus. He alleges in his petition that he is being unlawfully imprisoned in the Washington state penitentiary. The facts relative to his incarceration are these:

June 4, 1936, the prosecuting attorney of Yakima county filed an information charging the petitioner with the crime of the ownership and possession of a short firearm, he having been previously convicted of the crime of burglary. After trial the jury, January 4, 1937, returned a verdict of guilty. The prosecuting attorney then charged the petitioner with being an habitual criminal, and upon trial he was found guilty. Thereafter, based upon the verdict in the habitual criminal case, the court sentenced petitioner to life imprisonment for the crime of "being an habitual criminal."

The controlling opinion in cases of this nature is In re Towne, 14 Wn. (2d) 633, 129 P. (2d) 230. In accordance with the law laid down in that case, we order and direct as follows: The superintendent of the state penitentiary shall deliver the petitioner into the custody of the sheriff of Yakima county for a resentence by the superior court of that county, taking into consideration the habitual criminal conviction. If, at the expiration of thirty days from the time of his delivery into the custody of the sheriff, the petitioner shall not have been resentenced, he may have the right to apply to this court for final judgment upon his petition herein.

1 Reported in 133 P. (2d) 811.