Petition of Evans

413 P.2d 699 (1966)

147 Mont. 429

Petition of Jack EVANS.

No. 11134.

Supreme Court of Montana.

April 26, 1966.

Jack Evans, pro se.

PER CURIAM:

Original proceeding. Petition for writ of habeas corpus filed by Jack Evans, an inmate of the Montana State Prison, appearing pro se.

Petitioner in November of 1965 filed a petition for a writ of habeas corpus in this court, Cause No. 11030, which writ was denied by Memo Opinion reported in 146 Mont. 405, 409 P.2d 456. In his 1965 petition Evans alleged that he was confined in the state prison by virtue of a fifteen year sentence imposed by the district court of Yellowstone County on August 27, 1962, upon a plea of guilty to the crime of rape.

In the instant petition, Evans alleges he is presently confined in the state prison by virtue of that sentence and a fifteen year sentence imposed by the district court of Stillwater County on April 30, 1958, for the crime of robbery. Since in his first petition Evans made no mention of the previous conviction this court had no knowledge thereof until the filing of this second petition. Had this court been aware of the fact that even if a writ of habeas corpus were to be issued it would not have resulted in the release of the petitioner from prison; the 1965 petition would have been dismissed upon that ground. See Petition of Wagner, 145 Mont. 101, 399 P.2d 761.

As to the instant petition, what we said in Cause No. 11030, supra, with respect to the 1962 criminal proceedings would apply to the 1958 criminal proceedings, and petitioner concedes that on his first application he raised the identical argument as to the 1962 case as he is now raising as to the 1958 case.

Our views have not changed. The writ requested is denied and the proceeding is dismissed.