Opinion
No. 31871.
October 4, 1951.
FORGERY — INFORMATION — SUFFICIENCY — ATTEMPTS. Under Rem. Rev. Stat., § 2583, an information charged attempted forgery in the first degree, where it alleged that the defendant attempted to utter a check signed by a name which he knew to be a forgery, and the attempt to utter was with intent to defraud.
HABEAS CORPUS — DISPOSITION OF PERSON — IRREGULARITY IN JUDGMENT — RETURN FOR RESENTENCE. Where, in habeas corpus proceedings, it appears that the judgment and sentence of the petitioner was erroneous, in that it referred only to the crime of "attempted forgery," without specifying the degree, the petitioner will be returned for resentence for the crime of attempted forgery in the first degree upon his plea of guilty heretofore given to that charge.
Application filed in the supreme court August 10, 1951, for a writ of habeas corpus. Denied.
Thomas Eugene Dill, pro se. The Attorney General and Jennings P. Felix, Assistant, for respondent.
Petitioner applied for a writ of habeas corpus. His contention that the board of prison terms and paroles could not revoke his parole and have him returned to the penitentiary has been so often answered adversely that citation of authority is no longer necessary.
The charge against him was that he had attempted
"`. . . to utter a check in the amount of $56.00 drawn on the Puget Sound National Bank, Tacoma, Washington, made payable to George F. Martin, and signed in the name of A.L. Bush, said name of A.L. Bush being a forgery within the knowledge of the defendant and said attempt to utter being with intent to defraud.'"
To that information he entered a plea of guilty.
The information was entitled, and the judgment and sentence purported to adjudge him guilty of, "attempted forgery."
[1] There can be no doubt that the information charged attempted forgery in the first degree. See Rem. Rev. Stat., § 2583 [P.P.C. § 115-129], defining first-degree forgery. It is obvious that the uttering of a forged check is not within the second-degree forgery statute. See Rem. Rev. Stat., § 2585 [P.P.C. § 115-133]. Petitioner's contention that the information to which he entered a plea of guilty charged him with attempted second-degree forgery is untenable.
[2] The judgment and sentence, however, appears erroneous in that it refers only to the crime of "attempted forgery," without specifying the degree. This does not make the judgment and sentence void, but it does require resentencing. In re Cress, 13 Wn.2d 7, 123 P.2d 767; In re Bass v. Smith, 26 Wn.2d 872, 176 P.2d 355; In re Dobson v. Cranor, ante p. 174, 235 P.2d 164.
The petition for a writ of habeas corpus is denied; but, under the authority of Rem. Rev. Stat., § 1083 [P.P.C. § 58-39], we order the superintendent of the Washington state penitentiary, respondent herein, to deliver the petitioner into the custody of the sheriff for Pierce county, for resentencing by the superior court for that county, for the crime of attempted forgery in the first degree, upon his plea of guilty heretofore given to that charge.