State v. Rutherford, 37038

Decision Date05 March 1964
Docket NumberNo. 37038,37038
Citation63 Wn.2d 949,389 P.2d 895
CourtWashington Supreme Court
PartiesThe STATE of Washington, Respondent, v. Wallace R. RUTHERFORD, Petitioner.

Griffin, Boyle & Ross, Lawrence M. Ross, Tacoma, for petitioner.

Eugene G. Olson, Criminal Deputy Prosecuting Attorney, Pierce County, Tacoma (John G. McCutcheon, Prosecuting Attorney, and Joseph D. Mladinov, special counsel to Prosecuting Attorney both of Pierce County, Tacoma, with him on the brief) for State of Washington.

HAMILTON, Judge.

By writ of certiorari, petitioner, Wallace R. Rutherford, seeks review of an order denying his motion for a statement of facts and transcript at public expense in connection with his appeal of a criminal conviction. It is conceded that his appeal is nonfrivolous; hence, the sole issue presented upon this review is whether he qualifies as an indigent.

Petitioner, a promoter of various corporate enterprises, was charged with eight counts of violating the Securities Act of Washington (RCW 21.20). Pending trial, bail was set at $20,000, which he provided through personal sureties, supplemented at one stage by a $6,000 bond furnished by a compensated surety. Throughout all proceedings, including the present one, petitioner has been represented by privately retained counsel. Four thousand dollars has been paid to his counsel, $1,000 of which was expended in preparation for trial and $3,000 applied upon fees, with a balance due and owing upon fees in the amount of $1,666.45, secured in part by portions of a gun collection once owned by him.

Trial upon the charges commenced on October 9, 1962, consumed approximately 23 trial days, and concluded on November 11, 1962, when the jury returned a verdict of guilty on four of eight counts. Motion for new trial was timely filed, denied, sentence imposed, and notice of appeal given. Bail was increased to $25,000 and furnished in the form of a property bond executed by two personal sureties. The cost of a statement of facts on appeal was estimated, and found by the trial court, to be between $4,000 and $5,000.

On January 2, 1963, petitioner filed a motion and affidavit, pursuant to RCW 2.32.240, seeking to provided with court-appointed counsel and with a prepaid statement of facts and transcript to perfect his appeal. At the direction of the trial court, he thereafter supplemented his motion with an affidavit inventorying his physical assets. The state challenged his assertion of indigency and inability to pay the cost of perfecting his appeal. A series of hearings ensued, during the course of which he withdrew his request for court-appointed counsel. Based upon petitioner's affidavits and the evidence adduced at the hearings, it was his position that any physical assets remaining in his possession (including a 1961 Chrysler New Yorker automobile) were heavily encumbered, tied up in civil litigation, or of no value; that he was deeply in debt; and that he was living upon the charity of his friends. It was the state's position, in substance, that he had not made a good faith disclosure of all of his assets and that, in any event, he was capable of otherwise raising the necessary funds to perfect his appeal.

Parenthetically, it should be noted that concurrently with the prosecution of the charges in the instant case, petitioner was and is involved in some civil litigation, presumably arising out of his promotional activities, in which he is represented by privately retained counsel and a phase of which has already been reviewed by this court at his behest and expense. Gloyd v. Rutherford, 162 Wash.Dec. 58, 380 P.2d 867.

In passing upon relator's motion, the trial court in its oral decision, stated:

'The Defendant's assets, I think, are marginal and of doubtful present value. While it really doesn't effect my decision, I can't help but wonder how he can afford to drive a 1961 Chrysler, a far better car than I am able to drive, probably far better than anybody else in the court room owns and drives, and if he is nine months behind in payments and the company he deals with, with reference to the mortgage, is willing to accept his assurance that he will pay some day, there must be something on somebody's part, including the Defendant's, that he is going to be able to raise money some day and pay this up and reinstate this lien on that car.

'I think the Defendant and his associates stand to gain substantially if their hopes are realized, with reference to all of the transactions that were involved in this case. Actually, the costs of appeal are small, in the Court's opinion, compared with what has already been put into the Defendant's enterprises and apparently are still being put into these enterprises. It appears to the Court that sometime the Defendant may gain from the mining claims, he may gain in the value of his stock in Metallo Corporation.

'There are many ifs, connected with it, but based upon what he and his associates believe, they think the potential is great even at this date. It appears to the Court that the costs can be raised by Defendant or those who are interested in him and I do not believe the Defendant's qualifications under the general rules are applicable for the free statement of facts, and the motion is denied.'

Thereafter, the trial court entered extensive findings of fact, some predicated upon evidence adduced at the trial of the criminal charges, some upon judicial notice of proceedings in the civil litigation, and some upon evidence presented at the hearings upon petitioner's motion. From these findings, the trial court concluded he had not sustained his burden of qualifying as an indigent, and entered a formal order denying his motion.

Prefatory to a consideration of the merits of petitioner's contentions, we deem it advisable to set forth certain guiding principles.

(1) Indigent defendants, in keeping with constitutional guarantees, must be afforded as adequate appellate review as defendants who can afford to pay the costs of perfecting their appeals. Denial of a petition by an indigent criminal defendant for an adequate prepaid statement of facts to perfect a nonfrivolous appeal, constitutes a violation of the due process clause of the United States Constitution. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891; Eskridge v. Washington State Board of Prison Terms and Paroles, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269; Burns v. Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209; Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39; Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21; Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892; Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899; Norvell v. Illinois, 373 U.S. 420, 83 S.Ct. 1366, 10 L.Ed.2d 456; Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331; In re Woods v. Rhay, 54 Wash.2d 36, 338 P.2d 332; State v. Lewis, 55 Wash.2d 665, 349 P.2d 438.

(2) Indigence is a relative term, and must be considered and measured in each case by reference to the need or service to be met or furnished. When related to the constitutional rights surrounding the furnishing of a prepaid statement of facts and transcript to a defendant in a nonfrivolous criminal appeal, the term does not and cannot, in keeping with the concept of equal justice to every man, mean absolute destitution or total insolvency. Rather, it connotes a state of...

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  • State v. Devlin
    • United States
    • Washington Court of Appeals
    • 30 d3 Novembro d3 2011
    ...and must be considered and measured in each case by reference to the need or service to be met or furnished.” State v. Rutherford, 63 Wash.2d 949, 953, 389 P.2d 895 (1964). “[I]t connotes a state of impoverishment or lack of resources on the part of a defendant which, when realistically vie......
  • United States v. Nenna
    • United States
    • U.S. District Court — Southern District of New York
    • 31 d1 Julho d1 1967
    ...State v. DeJoseph, 3 Conn.Cir. 624, 222 A.2d 752, cert. denied, 385 U.S. 982, 87 S.Ct. 526, 17 L.Ed.2d 443 (1966); State v. Rutherford, 63 Wash.2d 949, 389 P.2d 895 (1964), appeal dismissed and cert. denied, 384 U.S. 267, 86 S.Ct. 1477, 16 L.Ed.2d 525 (1966). However, much has been written ......
  • State v. Hill
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    • 17 d4 Março d4 1994
    ...court decisions under the federal constitution, this rule was misappropriated into our body of state law. See State v. Rutherford, 63 Wash.2d 949, 955, 389 P.2d 895 (1964) (first Washington case referring to the duty to conduct an independent evaluation of the record where constitutional ri......
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    ...United States v. Stone, 298 F.2d 441 (4th Cir.1962), cert. denied 370 U.S. 927, 82 S.Ct. 1568, 8 L.Ed.2d 506; State v. Rutherford, 63 Wash.2d 949, 389 P.2d 895 (1964). There was no evidence of a pending divorce or estrangement between appellant and his wife; thus, the community property and......
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