In re Friedrich

• Decision Date: 09 August 1892
• Citation: 51 F. 747
• Parties: In re FRIEDRICH.
• Court: United States Circuit Court, District of Washington, Northern Division

51 F. 747

In re FRIEDRICH.

United States Circuit Court, D. Washington, Northern Division.

August 9, 1892

W. B Tyler, for petitioner.

James A. Haight, Asst. Atty. Gen., for the State.

HANFORD District Judge.

Albert Friedrich petitions for a writ of habeas corpus, on the following grounds: A valid indictment, charging him with the crime of murder in the first degree, was found by a lawful grand jury, and duly presented to the superior court of the state of Washington for the county of King. After arraignment and a plea of not guilty, he was upon said indictment tried in said court, with the result that the jury brought in a verdict finding him 'guilty as charged in the indictment ' He was thereupon sentenced to suffer the legal penalty for said crime, which is death. Upon a review of his case the supreme court of the state considered the evidence insufficient to warrant a conviction of the crime of murder in the first degree, and on that ground reversed the judgment of the superior court; but instead of setting the verdict aside, or ordering the superior court to do so, the supreme court ordered that said verdict stan 1, and remanded the case to the superior court, with instructions to enter a new judgment against the petitioner, adjudging him to be guilty of murder in the second degree, and to proceed thereon in accordance with law. 29 P. 1055. In obedience to such instructions, the superior court did adjudge the petitioner to be guilty of murder in the second degree, and sentenced him therefor to be punished by imprisonment at hard labor in the state penitentiary for a period of 20 years, and in pursuance of that sentence he is now incarcerated in said penitentiary. The petitioner claims that this last judgment is not merely voidable, because erroneous or irregular, but that, upon the face of the record, it is manifestly void, and therefore his present imprisonment is without due process of law, and in violation of the fourteenth amendment of the constitution of the United States. The state has appeared by the assistant attorney general, and, while admitting the facts above recited, resists the application, denying that this court has any jurisdiction or authority to order the release of the petitioner from custody, and denying the unlawfulness of his imprisonment.

No person charged with an offense against the laws of this state can be punished for such offense, unless he shall have been duly and legally convicted thereof in a court of competent jurisdiction; and no person indicted for an offense can be convicted thereof otherwise than by confession of his guilt in open court, or by the verdict of a jury accepted and recorded in open court. 2 Hill's Code, Secs. 1364, 1369. In a case wherein a person is accused of a crime like that of murder in the first degree, which necessarily includes other crimes of lesser magnitude, a question as to the grade of the offense or degree of guilt must necessarily arise whenever the accused shall have been found to have committed the guilty act charged. This subordinate question is one of mixed law and fact. Obviously, therefore, it is for the jury to decide. An indictment is sufficient to support a judgment for any grade of offense necessarily included within the principal crime charged. The office of an indictment however, is to raise an issue. A pleading which clearly and distinctly alleges all the facts essential constitute the lesser offenses included within the highest suffices to tender an issue as to each fact, and as to each offense; but a plea of guilty, or a verdict in a cause, is determinative, and, to be of any virtue or validity, must be certain and actually decisive of every question in issue. A verdict which lacks the quality of certainty will not support a judgment. Hayne, New Trial & App. p. 706, Sec. 235; Meeker v. Gardella, 1 Wash.St. 148, 23 P. 837; Lumber Co. v. Blanchard, 1 Wash.St. 234, 23 P. 839. A verdict or plea of guilty of murder in the first degree, and guilty of murder in the second degree, and guilty of each lesser included crime, down to simple assault, if such a thing can be imagined, could not serve to guide, much less control, the court in rendering the final judgment. The judgment in a case wherein such a verdict or plea had been received, whether inflicting as punishment a merely nominal fine, imprisonment, or the death penalty, would not be founded upon the plea or finding of a jury, but upon the opinion of the judge as to the facts of the case disclosed by the evidence. Now, as shown by the above references to the Code, the laws of this state do not admit of a judgment in a criminal case adverse to the defendant, upon any such a basis. A plea or verdict of guilty of a particular crime is in every case an indispensable prerequisite to the infliction of punishment under color of law, for any crime cognizable in the courts of record of this state. The petitioner has not, by a voluntary plea or confession in open court, authorized the superior court to render any judgment against him. But one verdict has been returned; that is, a general verdict, the legal meaning and effect of which is to declare the petitioner guilty of the crime of murder in the first degree. Kennedy v. People, 39 N.Y. 245; State v. Matrassey, 47 Mo. 295; Timmerman v. Territory, 3 Wash.T. 445, 17 P. 624. For that crime the law condemns the petitioner to suffer death, and does not authorize the court to imprison him in a penitentiary, or to subject him to any other punishment, except in an incidental way. The power to commute the punishment for said crime to imprisonment is committed to the governor, and is not vested in the courts of this state. There is therefore no law giving color of authority to...