38 Wn.2d 848, In the Matter of the Application for a Writ of Habeas Corpus of NELS SIIPOLA, Petitioner, v. JOHN R. CRANOR, as Warden of the State Penitentiary, Respondent

[No. 31799. Department One.     Supreme Court      June 28, 1951.]

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

[1] CRIMINAL LAW - JUDGMENT AND SENTENCE - ERRONEOUS SENTENCE - EFFECT. Where a judgment for the crime of grand larceny imposed a sentence of not more than ten years instead of the required statutory penalty of not more than fifteen years, such judgment was erroneous but not void; and the prisoner will be returned to the superior court wherein the judgment and sentence was imposed for resentencing.

Application filed in the supreme court May 11, 1951, for a writ of habeas corpus. Denied.

Nels Siipola, pro se.

The Attorney General and Jennings P. Felix, Assistant, for respondent.

PER CURIAM. -

Petitioner has filed an application for a writ of habeas corpus alleging that he is being unlawfully detained of his liberty by the respondent, superintendent of the state penitentiary, under a void judgment and sentence. Respondent has interposed a demurrer to the application.

September 24, 1948, petitioner pleaded guilty to an information filed against him in Clallam county criminal cause No. 1602, charging him with the crime of grand larceny, as defined by Rem. Rev. Stat., 2601 [P.P.C. 117-47]. September 27, 1948, he was adjudged guilty of that crime and sentenced to the penitentiary at Walla Walla, "for a period not to exceed ten years."

[1] We find merit in only one of petitioner's contentions, i.e., that the trial court should have sentenced him to a maximum of not more than fifteen years, rather than a maximum of not more than ten years. But this error does


1 Reported in 232 P. (2d) 920.

[1] See 55 A. L. R. 451; 15 Am. Jur. 108.

 June 1951]         IN RE SIIPOLA v. CRANOR.           849

not, as petitioner contends, render the judgment void. Rem. Supp. 1947, 10249-2, provides that she trial court shall impose the maximum sentence provided by law for the crime for which a defendant is convicted. The maximum penalty provided for grand larceny by Rem. Rev. Stat., 2605 [P.P.C. 117-55], is fifteen years' confinement in the state penitentiary. But, in In re Bass v. Smith, 26 Wn. (2d)872, 176 P. (2d) 355, where a sentence less than the maximum sentence was imposed, disregarding Rem. Supp. 1947, 10249-2, we held:

"While the judgment was deficient, it was not absolutely unauthorized, or of an entirely different character from that authorized by law. The judgment was erroneous, in that it did not impose a sentence of not less than twenty years, as provided by Rem. Rev. Stat. (Sup.), 10249-2, but it was not absolutely void."

That case is determinative of petitioner's contention here; although the sentence was deficient, the judgment is not void.

It is therefore the order of this court that the demurrer to the petitioner's application for a writ of habeas corpus be sustained and the application dismissed. It is further ordered that petitioner, Nels Siipola, be returned to the superior court for Clallam county for the purpose of resentencing in accordance with Rem. Supp. 1947, 10249-2.