Payne v. Smith

• Decision Date: 05 May 1948
• Docket Number: 30591.
• Citation: 30 Wn.2d 646,192 P.2d 964
• Parties: PAYNE v. SMITH, Superintendent of Penitentiary.
• Court: Washington Supreme Court

192 P.2d 964

30 Wn.2d 646

PAYNE v. SMITH, Superintendent of Penitentiary.

No. 30591.

Supreme Court of Washington

May 5, 1948

Department 1

Rehearing Denied June 8, 1948.

Original application by Roger B. Payne for writ of habeas corpus directed to Tom Smith, as Superintendent of the Washington State Penitentiary at Walla Walla, Wash.

Writ denied.

See also 25 Wash.2d 407, 175 P.2d 494.

Roger B. Payne, pro se.

Smith Troy and Lucile Lomen, both of Olympia, for respondent.

SCHWELLENBACH Justice.

This is an original application Before this court for a writ of habeas corpus, alleging that petitioner is imprisoned and deprived of his liberty in the Washington State Penitentiary, at Walla Walla, by virtue of a judgment and sentence issued out of the superior court of the state of Washington for Snohomish county, on December 20, 1945, after a trial and verdict of guilty by a jury; that the court did not have jurisdiction of his person at the time of the trial and sentence, because the charge of manslaughter and abortion were presented to the court and jury upon an information, and not upon an indictment of a grand jury, in contravention of the mandatory provisions of the fifth and fourteenth amendments to the constitution of the United States.

Petitioner's conviction was affirmed by this court in State v Payne, 25 Wash.2d 407, 171 P.2d 227, 175 P.2d 494.

Section 2, chapter 256, Laws of 1947, provides:

'In the consideration of any petition for a writ of habeas corpus by the Supreme Court, whether in an original proceeding or upon an appeal, if any Federal question shall be presented by the pleadings, it shall be the duty of the Supreme Court to determine in its opinion whether or not the petitioner has been denied a right guaranteed by the Constitution of the United States.'

Section 25, Articel I, of the state constitution, provides:

'Offenses heretofore required to be prosecuted by indictment may be prosecuted by information or by indictment, as shall be prescribed by law.' Section 26, Article I, provides:

'No grand jury shall be drawn or summoned in any county, except the superior judge thereof shall so order.'

Indictments are provided by Rem.Rev.Stat. § 2025, et seq.

Rem.Rev.Stat § 2024, provides:

'All public offenses may be prosecuted in the superior courts by information.'

Rem.Rev.Stat. § 2050, provides:

'All informations shall be filed in the court having jurisdiction of the offense specified therein by the prosecuting attorney of the proper county as informant; he shall subscribe his name thereto, and at the time the case is set for trial the prosecuting attorney shall file with the clerk a list of the witnesses which he intends to use at the trial and serve a copy of the same upon the defendant, and within five days thereafter the defendant shall file with the clerk and serve upon the prosecuting attorney a list of the witnesses which the defendant intends to use at the trial. Either party may add such additional names at any time Before trial as the court may by order permit, and the said court shall possess and may exercise the same powers and jurisdiction to hear, try, and determine all such prosecutions upon information, to issue writs and process, and do all other acts therein, at it possesses and may exercise in cases of like prosecution upon indictments.'

It will thus be seen that a person in this state may be charged with an infamous crime and brought to trial thereon, either upon an indictment found by a grand jury, or upon an information filed by the prosecuting attorney.

The Fifth Amendment to the constitution of the United States provides:

'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any Criminal Case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; not shall private property be taken for public use, without just compensation.'

Section 1 of the Fourteenth Amendment to the constitution of the United States provides:

'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.'

Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 120, 28 L.Ed. 232, was an appeal from a conviction and sentence by a California court, upon a trial based on an information, rather than upon an indictment by a grand jury. In affirming the conviction, the United States supreme court held:

'According to a recognized canon of interpretation, especially applicable to formal and solemn instruments of constitutional law, we are forbidden to assume, without clear reason to the contrary, that any part of this most important amendment is superfluous. The nature and obvious inference is that, in the sense of the constitution, 'due process of law' was not meant or intended to include, ex vi termini, the institution and procedure of a grand jury in any case. The conclusion is equally irresistable, that when the same phrase was employed in the Fourteenth Amendment to restrain the action of the states, it was used in the same sense and with no greater extent; and that if in the adoption of that amendment it had been part of its purpose to perpetuate the institution of the grand jury in all the states, it would have embodied, as did the fifth amendment, express declarations to that effect. Due process of law in the latter refers to that law of the land which derives its authority from the legislative powers conferred upon congress by the constitution of the United States, exercised within the limits therein prescribed, and interpreted according to the principles of the common law. In the Fourteenth Amendment, by parity of reason, it refers to that law of the land in each state which derives its authority from the inherent and reserved powers of the state, exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and the greatest security for which resides in the right of the people to make their own laws, and alter them at their pleasure.

"The fourteenth amendment' as was said by Mr. Justice Bradley in Missouri v. Lewis, 101 U.S. 22-31 , 'does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great diversities in these respects may exist in two states separated only by an imaginary line. On one side of this line there may be a right of trial by jury, and on the other side no such right. Each state prescribes its own modes of judicial proceeding.'

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'It follows that any legal proceeding enforced by public authority, whether sanctioned by age and custom, or newly devised in the discretion of the legislative power in furtherance of the general public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law.

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'Tried by these principles, we are unable to say that the substitution for a presentment or indictment by a grand jury of the proceeding by information after examination and commitment by a magistrate, certifying to the probable guilt of the defendant, with the right on his part to the aid of counsel, and to the cross-examination of the witnesses produced for the prosecution, is not due process of law. It is, as we have seen, an ancient proceeding at common law, which might include every case of an offence of less grade than a felony, except misprision of treason; and in every circumstance of its administration, as authorized by the statute of California, it carefully considers and guards the substantial interest of the prisoner. It is merely a preliminary proceeding, and can result in no final judgment, except as the consequence of a regular judicial trial, conducted precisely as in cases of indictments.'

In Gaines v. Washington, 277 U.S. 81, 48 S.Ct. 468, 470, 72 L.Ed. 793, in ruling on a writ of error to a judgment of the Supreme Court of Washington, the United States Supreme Court said:

'Another question raised on behalf of the defendant concerns the filing of the information for murder by the prosecuting attorney. Prosecution by information instead of by indictment is provided for by the laws of Washington. This is not a violation of the Federal Constitution. Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 292, 28 L.Ed. 232.'

In the recent case of Bute v. Illinois, 68 S.Ct. 763, 767, the United States Supreme Court said:

'The cases turn upon the meaning of 'due process of...