Pennington v. Smith

• Decision Date: 14 December 1949
• Docket Number: 30903.
• Citation: 212 P.2d 811,35 Wn.2d 267
• Parties: PENNINGTON v. SMITH, Superintendent of State Penitentiary.
• Court: Washington Supreme Court

212 P.2d 811

35 Wn.2d 267

PENNINGTON v. SMITH, Superintendent of State Penitentiary.

No. 30903.

Supreme Court of Washington

December 14, 1949

Department 2

Habeas corpus proceeding by Eugene Pennington against Tom Smith superintendent of the Washington State Penitentiary at Walla Walla.

From an order of the Superior Court of Spokane County, Ralph E Foley, J., denying application for writ, the petitioner appealed.

The Supreme Court, Mallery, J., affirmed the order. The court held that the petitioner, who had been charged by information filed by the prosecutor, was not denied due process because he was not given a preliminary hearing Before a committing magistrate, that failure to offer counsel to accused prior to arraignment did not violate his constitutional rights, that a finding of no coercion inducing plea of guilty would not be disturbed, and that irregularities prior to arraignment were not subject to inquiry after conviction and sentence.

Eugene Pennington, pro se and R. Max Etter, Spokane for appellant.

Smith Troy, John D. Blankinship, Olympia, for respondent.

MALLERY Justice.

This appeal is from an order denying an application for writ of habeas corpus after a hearing on a show cause order.

Appellant was arrested May 19, 1947 on a warrant issued by a justice of the peace of Spokane county upon the complaint of Ralph Smith, sheriff of that county, which charged him with carnally abusing his eleven year old daughter. He was not taken Before a committing magistrate for a preliminary hearing.

May 22 1947, the prosecutor filed an information charging appellant with carnal knowledge of a female child under the age of eighteen years. The same day, he was arraigned and pleaded guilty. After the information was read to him, upon arraignment, the following questions were asked by the court and answers given by petitioner:

'Q. Eugene Pennington is your true name? A. Yes sir.

'Q. Do you have an attorney? A. No sir.

'Q. Do you want an attorney? A. No sir.

'Q. You understand your rights under the law, that if you haven't funds with which to employ an attorney the court will appoint one if you request it? A. I don't see that it would do any good, sir.

'Q. You understand your rights however? A. Yes sir.

'Q. You do not want an attorney? A. No sir.

'Q. Are you ready to enter your plea at this time? A. Yes sir.'

Upon his plea of guilty appellant was sentenced to the state penitentiary according to law. At the show cause hearing appellant contended that his plea of guilty was neither voluntarily nor intelligently made because unlawful duress, coercion, threats and undue influence were used against him by the law enforcement officers after his arrest in the following particulars:

He was not permitted to use a telephone or to contact his wife or relatives and they were refused permission to see him; he was not given a preliminary hearing Before a committing magistrate. The sheriff and prosecutor did not inform him of his rights, or identify the complaining witness, but misinformed him that his wife had made the complaint. He was told that no lawyer would take his case, that he would be in jail several months awaiting trial and that, meanwhile, the child might be taken from his wife.

He did not see his wife until after his plea and the juvenile authorities released his daughter immediately after he was sentenced.

On the question of the necessity for a preliminary hearing, Rem.Rev.Stat.§ 1949 [P.P.C. § 162-1], provides as follows:

'§ 1949. Examination of offenses be fore magistrate. Upon complaint being made to any justice of the peace, or judge of the superior court, that a criminal offense has been committed, he shall examine on oath the complainant, and any witness provided by him, and shall reduce the complaint to writing, and shall cause the same to be subscribed by the complainant; and if it shall appear that any offense has been committed of which the superior court has exclusive jurisdiction, the magistrate shall issue a warrant reciting the substance of the accusation, and requiring the officer to whom it shall be directed forthwith to take the person accused and bring him Before the person issuing the warrant, unless he shall be absent or unable to attend thereto, then Before some other magistrate of the county, to be dealt with according to law, and in the same warrant may require the officer to summon such witnesses as shall be therein named, to appear and give evidence on the examination.'

This section does not provide the exclusive method by which criminal charges may be brought. It regulates charges by private persons made Before a committing magistrate which will cause him to inquire into the complaint. Where, however, the prosecutor elects to proceed independently, he is not required to invoke Rem.Rev.Stat., § 1949 [P.P.C. § 162-1], but may file an information on his own authority. A preliminary hearing is not necessary to due process. See State v. McGilvery, 20 Wash. 240, 245, et seq., 55 P. 115; and the cases cited therein; State v. Shears, 119 Wash. 275, 278, 205 P. 417; and Thompson v. Smith, Wash., 204 P.2d 525.

Appellant was not denied his right to counsel. The court offered him counsel on his arraignment. He refused it. Failure to offer counsel earlier in a case does not violate one's constitutional rights. U.S. ex...