39 Wn.2d 174, In the Matter of the Application for a Writ of Habeas Corpus of JAMES LESLIE DOBSON, Petitioner, v. JOHN R. CRANOR, as Superintendent of the State Penitentiary, Respondent
[No. 31826. Department One.      Supreme Court      August 16, 1951.]
In the Matter of the Application for a Writ of Habeas Corpus
           of JAMES LESLIE DOBSON, Petitioner, v. JOHN R. CRANOR,
                    as Superintendent of the State
                              Penitentiary, Respondent.«1»

[1] HABEAS CORPUS - PROCEEDINGS - SCOPE OF INQUIRY - EXAMINATION OF INFORMATION - WHEN PERMISSIBLE. In a habeas corpus proceeding, where it appears that the petitioner was confined in the penitentiary under a judgment and sentence upon a plea of guilty of "larceny by check," there being no statute which designates "larceny by check" a crime, the supreme court may examine the information in order to ascertain what the charge actually was.

[2] LARCENY - ISSUING WORTHLESS CHECK - NATURE AND DEGREE OF OFFENSE. Under Rem. Rev. Stat., §§2601(2), 2605(5), an information charged the defendant with the crime of grand larceny, where it alleged that the defendant feloniously obtained from certain named individuals the sum of $83, with intent to defraud the owner thereof, by color and aid of a specifically described check, and that the defendant then and there knew that the drawer of the check was not authorized or entitled to make or deliver the same.

[3] HABEAS CORPUS - DISPOSITION OF PERSON - IRREGULARITY IN JUDGMENT - RETURN FOR RESENTENCE. In a habeas corpus proceeding, where it appears that the petitioner was confined in the penitentiary under a judgment and sentence upon a plea of guilty of "larceny by check," and it further appears that the information in the case properly charged the petitioner with grand larceny, the petitioner will be delivered into the custody of the sheriff of the county wherein he had been sentenced, for resentence for the crime of grand larceny, upon his plea of guilty heretofore given to said charge.

Application filed in the supreme court June 16, 1951, for a writ of habeas corpus. Denied.

Petitioner has applied for a writ of habeas corpus, alleging that he is unlawfully restrained of his liberty at the state penitentiary by virtue of a judgment and

[1] We held in In re Sorenson v. Smith, 34 Wn. (2d) 659, 209 P. (2d) 479, that there is no statute which designates "larceny by check" a crime. However, we also held in that case that, where such a recitation is in the judgment, we may examine the information in order to ascertain what the charge actually was.

Turning to the information in the instant case, we find that the defendant (petitioner herein) was charged with feloniously obtaining from certain named individuals the sum of $83, lawful money of the United States of America, with intent to deprive and defraud the owners thereof, by color and aid of a check, which check was set out verbatim in the information, and that defendant then and there knew that the drawer of the check was not authorized or entitled to make or deliver the same.

[2] Under Rem. Rev. Stat., § 2601(2) [P.P.C. § 117-47], the above constituted larceny, and under Rem. Rev. Stat., § 2605 (5) [P.P.C. § 117-55], the above constituted grand larceny. Petitioner was therefore properly charged with the crime of grand larceny. The application for the writ of habeas corpus is therefore denied.

[3] Upon the authority of Rem. Rev. Stat., § 1083 [P.P.C. § 58-39], we order and direct the superintendent of the state penitentiary, respondent herein, to deliver petitioner into the custody of the sheriff of Yakima county, for resentence by the superior court of that county for the crime of grand larceny, upon his plea of guilty heretofore given to said charge.