Lybarger v. State

• Decision Date: 14 July 1891
• Citation: 27 P. 449,2 Wash. 552
• Parties: LYBARGER v. STATE. [1]
• Court: Washington Supreme Court

27 P. 449

2 Wash. 552

LYBARGER v. STATE. ^[1]

Supreme Court of Washington

July 14, 1891

Appeal from superior court. Thurston county.

John G Lybarger was convicted of the crime of seducing Elsie Patnude and appeals. Affirmed.

Marshall K. Snell, for appellant.

W A. Reynolds, T. N. Allen, and C. H. Ayer, for the State.

DUNBAR J.

The record in this case shows that on the 22d day of July, 1890 the state's attorney, W. A. Reynolds, filed a complaint with John G. Sparks, a justice of the peace for Thurston county, state of Washington, charging appellant with the crime of seduction; whereupon appellant, being brought before the court, waived examination, and entered into a recognizance for his appearance at the superior court. That thereafter, on the 6th day of October, 1890, the said W. A Reynolds, prosecuting attorney for Thurston county, made and filed with the superior court of Thurston county, state of Washington, an information charging appellant with having on the 10th day of January, 1889, in the county of Thurston, Wash., seduced one Elsie Patnude, etc. That thereafter, and on October 7, 1890, appellant was arraigned and required to plead to said information, and did plead not guilty thereto. That thereafter a trial was had, in which, on October 10, 1890, a verdict was rendered purporting to find appellant guilty of the crime of seduction; and thereafter a motion in arrest of judgment and a motion for a new trial were made, and denied by the court, and on October 24, 1890, a judgment and sentence were rendered by said court, purporting to adjudge appellant guilty of the crime of seduction, and that he be punished therefor by imprisonment in the state penitentiary at Walla Walla, in said state, at hard labor, for the period of four years, and that he pay the costs of prosecution, and committing him to the custody of the sheriff of Thurston county to carry such judgment into execution; all of which proceedings upon such trial, and up to and including the entry of judgment and sentence, are fully stated and made a part of the record of said superior court in such proceeding by its statement of facts, evidence, and charge of the court, as filed in this court. That at the time of entry of said judgment notice of appeal was given in open court, and a supersedeas granted by the court. That thereafter, and on the 13th day of March, appellant served notice of appeal, appealing from said judgment and sentence, and each and every part thereof, which notice of appeal is duly entered of record and filed in this court. The following grounds are relied upon by appellant for the reversal of this judgment: (1) Illegality of proceedings by information for a crime committed prior to the adoption of the constitution of the state, (2) misconduct of the jury; (3) insufficiency of evidence; (4) error of trial court.

As to the first proposition it is urged- First, that the proceeding by information was illegal; second, that an indictment was necessary to jurisdiction and a valid judgment; third, that the court will look into the record to ascertain whether there was jurisdiction. During our territorial existence there was no question but the defendant would have had a right to a presentment by a grand jury, and this crime was alleged to have been committed before the adoption of the constitution and the admission of the state into the Union. Section 25, art. 1, of the constitution of the state of Washington provides that offenses heretofore required to be prosecuted by indictment may be prosecuted by information or by indictment, as shall be prescribed by law. Section 26, art. 1, of the constitution says: "No grand jury shall be drawn or summoned in any county, except the superior judge thereof shall so order." Some of the questions involved here are exceedingly interesting, and this court has at least undertaken to give them a painstaking examination, and the conclusion reached from that investigation is that the law changing the mode of procedure from an indictment to an information does not contain any of the elements or respond to any of the accepted definitions of an ex post facto law; and that it is not in violation of any guaranty by the federal constitution. The dissenting opinion of Justice HARLAN in Hurtado v. People, 110 U.S. 516, 4 S.Ct. 111, 292, cited by appellant, is a learned and highly interesting dissertation on the origin, history, and benefits of a grand jury; but the reasoning of the learned judge does not appeal to our minds as strongly as does that of the majority opinion, which holds, upon well-sustained reasoning, and by an overwhelming weight of authority, that a conviction upon an information for murder in the first degree, and a sentence of death thereon, are not illegal by virtue of the clause in the fourteenth amendment to the constitution of the United States, which prohibits the states from depriving any person of life or property without due process of law. The application of the fifth amendment to the constitution of the United States to this question has been so distinctly settled that it seems to us that an extended discussion would not be justified. In Barron v. City Council of Baltimore, 7 Pet. 243, Chief Justice MARSHALL, in discussing the fifth and sixth amendments, after a thorough review of the questions, says: "These amendments contain no expression indicating an intention to apply them to state governments. This court cannot so apply them." And in Twitchell v. Com., 7 Wall. 324, the chief justice of the supreme court of the United States, in an opinion concurred in by the full bench, says: "But the scope and application of these amendments are no longer subjects of discussion;" and, quoting the opinion of Chief Justice MARSHALL, just above cited, says: "And this judgment has been frequently reiterated, and always without dissent." From an investigation of all the cases cited we are compelled to conclude that an indictment by a grand jury is neither a constitutional right, nor a substantial right of any kind, but that it is simply a procedure, and as such it is within the power of the legislature to change or abolish it. No right of defense is taken from the defendant in this action that he had at the time of the commission of the crime. He is entitled now, as he was then, to be tried by a jury of his peers; to be heard by himself or counsel; to meet the witnesses face to face; to have the same length of time to prepare for trial. It takes the same weight of testimony now as it did then to convict. He is entitled to the same presumptions. The penalty for the crime remains the same. No right has been abridged, no avenue of escape closed up, which was open to him before. It was not in the grand-jury room that he could make any defense before. That room presented to him a closed door. The presentation through the grand jury is simply a mode of procedure by which the defendant is brought formally before the trial court. The state can prescribe another mode, as it has, by information filed by the prosecuting attorney. These are questions that cannot substantially concern the defendant. They are preliminary proceedings; mere modes of attainment or forms of procedure. There is no fundamental right of the defendant affected by one of these modes any more than by the other. No one has any vested interest in either of these modes of procedure. Through the instrumentality of either, the defendant is charged with crime, and put upon his defense; and, if these preliminary steps have been taken according to law, and he has had a fair trial in a court of justice according to the modes of proceeding applicable to such a case, he cannot be heard to complain.

As to the question whether or not the law now in force in relation to informations as applied to this crime is an ex post facto law we will quote and abide by the classified definition of Chief Justice CHASE in Calder v. Bull, 3 Dall. 386, quoted afterwards by the supreme court of the United States with approval, and which has been generally accepted by the courts as a comprehensive and correct definition, which is as follows: "(1) Every law which makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action (2) every law that aggravates a crime, or makes it greater than when it was committed, (3) every law that changes the punishment, and enforces a greater punishment than the law annexed to the crime when committed; (4) every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the offender." Measured by this standard, the law in question cannot be said to be ex post facto in its effect. If so, under what classification does it fall? We cannot agree with the appellant that either anything decided or any dictum in the case of Kring v. State, 107 U.S. 221, 2 S.Ct. 443, supports his contention in this case. What was held in that case was that "within the meaning of the constitution any law is ex post facto which is enacted after the offense was committed, and which, in relation to it or its consequences, alters the situation of accused to his disadvantage." Kring had been indicted for murder in the first degree. He had been tried four times, and convicted once on a plea of guilty of murder in the second degree, and was sentenced to imprisonment in the penitentiary for 25 years. He took an appeal from the judgment on the ground that he had had an understanding with the prosecuting attorney that if he would plead as he did his sentence should not exceed 10 years' imprisonment. The judgment was reversed by the supreme court, and when the case came on for trial again he refused to...