Opinion
Submitted May 12, 1965
Affirmed September 8, 1965
Appeal from Circuit Court, Marion County.
VAL D. SLOPER, Judge.
Thomas Edward Grenfell, in propria persona.
Robert Y. Thornton, Attorney General, and C.L. Marsters, Assistant Attorney General, Salem, for respondent.
Before McALLISTER, Chief Justice, and PERRY, SLOAN, O'CONNELL, GOODWIN, DENECKE and HOLMAN, Justices.
AFFIRMED.
This is a habeas corpus proceeding brought in the circuit court for Marion county by Thomas Grenfell, a prisoner in the state penitentiary, against the warden, Clarence T. Gladden. The petition is based on alleged cruelty of the prison guards. The lower court after a hearing on the merits dismissed the writ, and plaintiff appeals.
It appears from the record that on March 8, 1963 Grenfell was sentenced to the penitentiary for a term not exceeding five years. The validity of that sentence is not challenged. In his petition in this proceeding Grenfell alleges that on October 6, 1963 in the segregation building in the penitentiary, he was subjected to an unprovoked, unnecessary and brutal beating at the hands of three prison guards, who are named in the petition, that said guards assaulted him by striking him with their fists and by kicking him, and that as a result of such conduct on the part of the officers it was reasonably necessary for the petitioner to use force in self-defense. Petitioner further alleges that the force used upon him was not necessary to compel compliance with prison regulations, that in any event it was not necessary or proper for the guards to hit him, and that the alleged assault and battery was in violation of ORS 421.105(1), (2).
ORS 421.105 "(1) The warden may enforce obedience to the rules for the government of the convicts by appropriate punishment but neither the warden nor any other prison official or employe may strike or inflict physical violence except in self-defense, or inflict any cruel or unusual punishment.
"(2) The person of a convict sentenced to imprisonment in the penitentiary is under the protection of the law and he shall not be injured except as authorized by law."
For many years this court followed without deviation the traditional rule that habeas corpus could only be used to attack a judgment void because the court lacked jurisdiction of the person or the subject matter. Garner v. Alexander, 167 Or. 670, 674, 120 P.2d 238 (1941), cert. den. 316 U.S. 690, 62 S Ct 1281, 86 L Ed 1761 (1942); Macomber v. State, 181 Or. 208, 217, 180 P.2d 793 (1947). In Huffman v. Alexander, 197 Or. 283, 299, 251 P.2d 87, 253 P.2d 289 (1953), it was recognized that the invalidity of a judgment might result from circumstances in connection with the criminal prosecution "even though the court had jurisdiction, in the narrow sense, over person and subject-matter at the inception of the proceedings." See also, Anderson ex rel Poe v. Gladden, 205 Or. 538, 543, 288 P.2d 823 (1955), cer. den. 350 U.S. 974, 76 S Ct 451, 100 L Ed 845 (1956); Smallman v. Gladden, 206 Or. 262, 269, 291 P.2d 749 (1956). In Landreth v. Gladden, 213 Or. 205, 324 P.2d 475 (1958), we held that habeas corpus would lie to set aside a sentence in excess of the power of the court to impose.
Whether the remedy of habeas corpus should be further expanded to permit its use by a prisoner claiming that cruel and unusual punishment is being inflicted on him in violation of his rights under the Constitution of the United States or the Constitution of Oregon need not be decided in this case. We note, however, that a growing number of jurisdictions are permitting the use of habeas corpus for that purpose. In re Riddle, 57 Cal.2d 848, 22 CaR 472, 372 P.2d 304 (1962), cert. den. 371 U.S. 914, 83 S Ct 261, 9 L Ed2d 173 (1962); In re Jones, 57 Cal.2d 860, 22 CaR 478, 372 P.2d 310 (1962); Mahaffey v. State, 87 Ida 228, 392 P.2d 279 (1964); State v. Tahash, 269 Minn. 1, 129 N.W.2d 903 (1964); People v. Johnston, 9 N.Y.2d 482, 215 So.2d 44, 174 N.E.2d 725 (1961); Hughes v. Turner, 14 Utah 2d 128, 378 P.2d 888 (1963), cert. den. 374 U.S. 846, 83 S Ct 1903, 10 L Ed2d 1065; Coffin v. Reichard (6th Cir 1944), 143 F.2d 443, 155 ALR 143; Johnson v. Dye (3rd Cir 1949) 175 F.2d 250, rev. [on other grounds] 338 U.S. 864, 70 S Ct 146, 94 L Ed 530 (1949), reh. den. 338 U.S. 896, 70 S Ct 238, 94 L Ed 551.
Assuming that habeas corpus will issue to prevent the imposition of cruel or unusual punishment of such a nature as to render the imprisonment void under § 13 and § 16, Art. I, of the Oregon Constitution, or under the Eighth Amendment to the Constitution of the United States, we hold nevertheless that the petition in this case fails to allege treatment constituting cruel and unusual punishmment within the meaning of those constitutional provisions. The petition in this case alleges only an isolated assault on petitioner by prison guards. If we assume that the alleged assault was unlawful, we must also assume that the warden has taken steps to prevent its repetition. The petition does not allege that the assault was a routine happening, nor that it is likely to recur. We have held in Gibbs v. Gladden, 227 Or. 102, 105, 359 P.2d 540 (1961), cert. den. 368 U.S. 862, 82 S Ct 105, 7 L Ed2d 58 (1961), that the purpose of the writ of habeas corpus is to inquire into the legality of imprisonment and not to supervise administration of the institution. In the absence of some showing that petitioner's constitutional rights will probably be violated, we think the petition failed to state facts sufficient to warrant the issuance of the writ.
The judgment of the lower court is affirmed.