34 Wn.2d 929, In the Matter of the Application for a Writ of Habeas Corpus of RICHARD BARRY, Petitioner, v. JOHN R. CRANOR, as Warden of the State Penitentiary, Respondent

[No. 31180. Department Two.      Supreme Court      October 25, 1949.]

In the Matter of the Application for a Writ of Habeas Corpus of RICHARD
      BARRY, Petitioner, v. JOHN R. CRANOR, as Warden of the State
                          Penitentiary, Respondent.1

Application filed in the supreme court August 13, 1949, for a writ of habeas corpus. Granted.

Richard Barry, pro se.

The Attorney General and John D. Blankinship, Assistant, for respondent.

PER CURIAM. -

Petitioner, who is an inmate of the Washington state penitentiary, applied for a writ of habeas corpus, basing his claim of right to the writ on the fact that he was sentenced to serve a term of not more than fifteen years in the state penitentiary upon his plea of guilty to the charge of issuing a check on a bank, knowing that he did not have sufficient funds therein for its payment.

The record discloses that the claim of petitioner is true, and, further, that the information did not charge petitioner with having obtained any money or other consideration because he issued the check.

The conclusion reached by this court in the case of In re Jeane v. Smith, ante p. 826, 210 P. (2d) 127, governs the disposition of the case at bar, in that the charge was based upon Rem. Rev. Stat., 2601-2 [P.P.C. 116-41], which provides the penalty as for a gross misdemeanor.

We hold that the sentence to the penitentiary was void. The writ will issue, with instructions that petitioner be returned to the superior court for Pierce county, there to be dealt with as provided by law.


1 Reported in 210 P. (2d) 822.