Brandon v. Webb, 29539.

• Decision Date: 28 June 1945
• Docket Number: 29539.
• Citation: 23 Wn.2d 155,160 P.2d 529
• Parties: BRANDON v. WEBB, Superintendent of Washington State Penitentiary.
• Court: Washington Supreme Court

160 P.2d 529

23 Wn.2d 155

BRANDON v. WEBB, Superintendent of Washington State Penitentiary.

No. 29539.

Supreme Court of Washington

June 28, 1945

Department 1.

Proceeding in the matter of the application for a writ of habeas corpus of Bob Brandon against Bert O. Webb, Superintendent of the Washington State Penitentiary at Walla Walla, Wash., to obtain petitioner's release from the penitentiary. From an order in favor of the petitioner, the Superintendent of the State Penitentiary appeals.

Order reversed, and petition dismissed.

Appeal from Superior Court, Thurston County; D. F. Wright, judge.

Smith Troy and R. Paul Tjossem, both of Olympia, and John Panesko of Chehalis, for appellant.

Bob Brandon, of Walla Walla, pro se.

STEINERT Justice.

By an amended information filed in the superior court for Lewis county on May 7, 1935, Bob Brandon, the defendant named in the accusation, was charged with the crime of murder in the first degree. Upon his arraignment on August 20, 1935, he was duly informed, by the court, of the nature of the information and was asked whether he had counsel, to which he replied in the negative. He was then asked whether he desired the services of an attorney and again answered in the negative. In response to the further question whether he was ready to plead to the information, he replied that he would enter a plea of guilty of murder in the second degree. Thereupon the prosecuting attorney announced that such a plea would be acceptable to the state of Washington. The court, expressing its opinion that murder in the second degree is an included offense within the crime of murder in the first degree, with which latter offense the defendant had been charged, and being fully advised in the premises, accepted defendant's plea of guilty of murder in the second degree and ordered that such plea be entered of record. The defendant was then asked by the court whether he had any legal cause to show why judgment should not immediately be pronounced against him, to which he replied that he had none except as he had theretofore stated. No sufficient cause to the contrary being shown or appearing, the court rendered judgment convicting the defendant of murder in the second degree and imposing a sentence of confinement in the state penitentiary for a period of not less than twenty-five years nor more than thirty-five years.

Upon the entry of judgment and sentence, a warrant of commitment was issued, and pursuant thereto defendant was confined in the state penitentiary, where he has remained ever since.

Nine years, later, on April 13, 1944, defendant filed in this court his petition for a writ of habeas corpus, seeking his discharge from imprisonment in the penitentiary and asserting that the judgment of conviction and sentence is void because no jury was ever impaneled to determine the 'degree' of murder of which he was guilty, contrary to the mandate of the State Constitution, the statutes of this state, and the decisions of this court. The matter was referred by this court to the superior court for Thurston county, which latter court, after due and regular hearing, rendered a memorandum opinion declaring that the defendant was entitled to have the degree of his crime fixed by a jury, and thereupon entered an order directing the superintendent of the penitentiary to deliver the defendant to the sheriff of Lewis county to be held by the sheriff until otherwise ordered by the superior court for that county. From that order, the state of Washington has appealed to this court. We shall hereinafter refer to the state as appellant, and to the defendant as respondent.

The question presented for our decision is whether, under the facts above stated, the superior court for Lewis county had authority originally to enter a valid judgment of conviction and sentence, and to issue a commitment thereon, without first impaneling a jury to hear testimony and determine the degree of murder of which respondent was guilty and the punishment therefor.

Respondent's argument is based fundamentally upon Art. I, § 21, of the State Constitution, which provides that the right of trial by jury shall remain inviolate. His contention in this respect is that if, at the time of the adoption of the Constitution, one accused of murder was entitled to a jury trial, neither the Legislature nor the judiciary has the power to alter that right.

No one will deny that at and prior to the time of the adoption of our State Constitution, in 1889, the right of trial by jury had an established existence in the territory of Washington, Laws of 1854, p. 118, § 101; Code of 1881, chapter LXXXVII, p. 202, § 1078. It is noteworthy, however, that those legislative acts, which relate to criminal procedure, prescribed that trial by jury should be had on issues of fact joined upon an indictment (or information as provided in chapter 28, Laws of 1891, p. 58, § 66, Rem.Rev.Stat. § 2137). That fact should be here kept in mind.

It is undoubtedly true that under the constitutional provision referred to above the right of trial by jury may not, by legislative or judicial action, be annulled, nor be so impaired, obstructed, or restricted as to make of it a nullity. That does not mean, however, that a trial by jury is imperative and compulsory in every instance, regardless of whether or not the accused by his plea has raised an issue of fact triable by a jury. The purpose of the constitutional provision was to preserve to the accused the right to a trial by jury as it had theretofore existed; it was not the purpose of the fundamental enactment to render the intervention of a jury mandatory, in the face of the accused person's voluntary plea of guilty to the charge, where no issue of fact was left for submission to, or determination by, the jury.

In this state a person who has been informed against or indicted for a crime may be convicted in any one of three ways: (1) by admitting, in his plea, the truth of the charge; (2) by confession in open court; or (3) by the verdict of a jury, accepted and recorded by the court. Rem.Rev.Stat. § 2309. There are, likewise, in this state but three pleas to an indictment or information: (1) guilty; (2) not guilty; and (3) a former judgment of conviction or acquittal of the offense charged. Rem.Rev.Stat. § 2108.

A plea of guilty has the same effect in law as a verdict of guilty, except that, upon leave of the court, it may be withdrawn and another plea substituted therefor at any time Before the rendering of final judgment and sentence thereon. State ex rel. Lundin v. Superior Court, 102 Wash. 600, 174 P. 473. See, also, State v. Liliopoulos, 165 Wash. 197, 209, 5 P.2d 319.

Such plea is a confession of guilt and is equivalent to a conviction, leaving no issue for the jury, except in those instances where the extent of the punishment is to be imposed or found by the jury. By pleading guilty the defendant admits the acts well pleaded in the charge, waives all defenses other than that the indictment or information charges no offense, and waives the right to trial and the incidents thereof. 22 C.J.S., Criminal Law, § 424, p. 655; 14 Am.Jur. 952, Criminal Law, § 272.

In Cooke v. Swope, D.C.Wash., 28 F.Supp. 492, 493, which arose on a petition for writ of habeas corpus, the court, in defining the effect of a plea of guilty said: 'It is a 'record of admission of what is well alleged in the indictment'. Bishop's New Criminal Procedure, 2nd Ed. 1913, Sec. 795.2; 16 Cor.Jur. pp. 394, 400. It is a waiver of trial and all the incidences of it. See Hallinger v. Davis, 1892, 146 U.S. 314, 13 S.Ct. 105, 36 L.Ed. 986; United States v. Norris, 1930, 281 U.S. 619, 50 S.Ct. 424, 74 L.Ed. 1076.'

Many of the cases hold that a plea of guilty waives all constitutional guaranties with respect to the conduct of criminal prosecutions, but in our opinion such a plea does not have that effect in those instances where the jury is required to fix the penalty, as, in this state, in murder in the first degree. Rem.Rev.Stat. § 2392. It will be borne in mind, however, that in the case at bar the crime to which the respondent entered a plea of guilty was not murder in the first degree, but only murder in the second degree, for which the statute itself, Rem.Rev.Stat. § 2393, peremptorily fixes the punishment at not less than ten years' imprisonment in the state penitentiary. A jury would have no voice in the matter of the punishment for that offense because, upon a plea of guilty, no issue of fact is involved and hence no further trial is required.

At this point, also, we note that we are not here presented with a situation where an accused person, after pleading not guilty, waives a jury trial and goes to trial Before the court sitting alone. In such situations, this court has held that, under Rem.Rev.Stat., § 2309, one charged with the commission of a crime may not waive trial by jury unless in his plea he admits the truth of the charge of in open court confesses his guilt. State v. Karsunky, 197 Wash. 87, 84 P.2d 390; State v. McCaw, 198 Wash. 345, 88 P.2d 444. That again, however, is not the situation presented by this case. The respondent did not enter a plea of not guilty, nor did he go to trial upon such a plea. On the contrary, he pleaded guilty, as he had the right to do. State v. Horner, 21 Wash.2d 278, 150 P.2d 690. By such plea he waived the right to trial upon a charge of murder in the second degree, wherein the jury would have had no part in fixing the punishment.

We conclude that, in this case, there was no constitutional barrier against the validity of the judgment of conviction and sentence entered by the trial court.

Respondent next, and most confidently, bases his argument on Laws of 1854, p. 115, § 87, carried...