State ex rel. Bird v. Superior Court, Pierce County

• Decision Date: 12 March 1948
• Docket Number: 30513.
• Citation: 30 Wn.2d 110,190 P.2d 762
• Parties: STATE ex rel. BIRD v. SUPERIOR COURT, PIERCE COUNTY et al.
• Court: Washington Supreme Court

190 P.2d 762

30 Wn.2d 110

STATE ex rel. BIRD v. SUPERIOR COURT, PIERCE COUNTY et al.

No. 30513.

Supreme Court of Washington, En Banc.

March 12, 1948

Original proceeding by the State, on the relation of Jake Bird against the Superior Court of the State of Washington for Pierce County and others, to obtain a writ of mandate requiring the respondents to permit the relator to prosecute his appeal from a judgment of conviction.

Writ of mandate issued.

MILLARD SIMPSON and JEFFERS, JJ., dissenting.

Tuttle & Luce, of Walla Walla, for relator.

Patrick M. Steele, Pros. Atty., and Earl D. Mann, both of Tacoma, for respondents.

HILL Justice.

Jake Bird was found guilty of murder in the first degree in department No. 3 of the superior court for Pierce county on November 26, 1947, and the jury further found that the death penalty should be imposed.

On December 6, 1947, the defendant's motion for a new trial came on for hearing. After overuling the motion, the trial judge asked the defendant whether he had anything to say as to why the judgment of the court should not be pronounced. The defendant spoke at some length, enumerating the reasons why he felt he had not had a fair trial. Upon the conclusion of the defendant's statement, judgment of death was pronounced and entered. Both of the counsel for the defendant (who had been appointed by the court to represent him) announced that there would be no appeal and asked to be relieved of any further duties in connection with the case.

The defendant denies that he was ever consulted by his attorneys about an appeal, and denies that he authorized them to say that there would be no appeal, and the record shows that he was not asked by the trial court as to whether or not he desired to appeal.

The trial judge, after calling attention to the fact that counsel for the defendant had stated that there would be no appeal, announced that it then became the duty of the court to sign the death warrant, which he proceeded to do, fixing the sixteenth day of January 1948, as the date on which the defendant was to be hanged.

Before signing the death warrant, the trial judge complimented the counsel who had represented the defendant on having done everything in their power to see that he had a fair and impartial trial, and said: 'I want to assure counsel, both counsel in this case, they cannot be criticised in any way whatever, for not taking an appeal to the Supreme Court in a case where, after hearing all the evidence as presented and the verdict of the jury in their own minds they have done everything they can for the defendant, and an appeal would avail them nothing. I do not believe under those circumstances that the obligation of attorney extends further than that which has been performed by these attorneys in this case.'

The death warrant having been signed, the defendant was, on the next day, December 7th, removed from the Pierce county jail and taken to the penitentiary at Walla Walla. The warden of the penitentiary says in his affidavit that on the seventh day of December, 1947, Jake Bird was delivered into his custody and that, as soon as the prisoner arrived at the penitentiary, he made requests for an opportunity to appeal his case; that on the ninth day of December, 1947, the prisoner wrote a letter to the clerk of the superior court for Pierce county giving notice of appeal, and a second letter requesting a transcript of the record, if attorneys were not appointed to represent him on the appeal, and a third letter to the trial judge informing the judge of his notice of appeal and requesting appointment of counsel to assist him therein; that these letters were written in longhand by the prisoner and reached his (the warden's) desk on December 9th; and '* * * that on the 10th day of December, 1947, I concluded the requests of prisoner were not without merit and I thereupon directed a stenographer to type the letters;' and that the letters to the clerk and to the trial judge were deposited in the United States post office at Walla at or about four p.m. on that day.

The notice of appeal was as follows:

'Clerk of Superior Court

'Tacoma, Wash.

'This is to advise you that I file notice of appeal from my conviction on Nov. 26th and my death sentence on Dec. 6th.

'Jake Bird [signed]'

It is undisputed that this notice of appeal was not received in the office of the clerk of the superior court for Pierce county until December 12, 1947, or the sixth day after the entry of the judgment appealed from. It is likewise undisputed that the latter addressed to the trial judge was not received by him until December 12, 1947; and that, although the prosecuting attorney was on that date notified by the trial judge of the notice of appeal, no copy thereof was served upon him until about January 16, 1948.

The clerk and the trial judge took the position, relying on Rule of Supreme Court 12, subds. (1)(a) and (3), 18 Wash.2d 14-a, that the notice of appeal was not timely and that no appeal was initiated thereby. The rule in question reads as follows:

'(1) (a) In criminal causes, in order to initiate an appeal, notice of appeal to the supreme court shall be given in open court at the time, or written notice of appeal shall be served upon the prevailing party and filed in the office of the clerk of the superior court within five days after the entry, of judgment or order from which the appeal is taken. * * *

'(3) Strict conformance with the following requirements shall be necessary, and no appeal to the supreme court in a criminal cause shall be effectual unless:

'First, notice of appeal shall have been given in the manner and at the time specified in (1)(a) of this rule. * * *'

Based upon these facts, Jake Bird made application for a writ of mandate requesting this court to hold that his notice of appeal, received by the clerk of the superior court for Pierce county on December 12, 1947, initiated an appeal; and that we direct the judge of department No. 3 of the superior court for Pierce county to direct the clerk of the superior court for that county to comply with Rule 12(1)(b); and that the clerk be required to take such further steps as are required of a clerk of the superior court in a criminal appeal.

(We have to this point referred to Mr. Bird as the defendant; the warden's affidavit referred to him as the prisoner; by his application for a writ of mandate he became the relator in the present proceeding, endeavoring to secure for himself the status of appellant. We shall henceforth, to avoid any confusion, refer to him as Bird.)

We have repeatedly held that the filing of a notice of appeal within the five-day period is jurisdictional; and the clerk and the trial judge, not being apprised of all of the facts, were justified in taking the position that the notice received by the clerk on the sixth day following the entry of the judgment did not initiate an appeal.

We held, by a divided court, in State v. Brown, 26 Wash.2d 857, 176 P.2d 293, that in capital cases this court might exercise its discretion and release the rigid requirements of Rule 12 for sufficient cause shown. Without commenting upon and without relying upon that case, we hold that a combination of circumstances for which various officials representing the state and county were responsible, prevented the exercise by Bird of his constitutional right of appeal within the five-day period allowed by the rule, and that, consequently, the rule has no applicability to this case.

Article I, § 22 (see the tenth amendment) of our state constitution provides that, in criminal prosecutions, the accused shall have 'the right to appeal in all cases.' We have already set forth the applicable rule limiting that right to a period of five days after the entry of the judgment from which the appeal is taken. That rule assumes that a defendant, or attorneys representing him, would have an opportunity to file a notice of appeal within the five-day period.

By was of illustration, suppose a person convicted of crime, whose attorneys had been discharged from further service by the court, was, immediately after the entry of the judgment, placed in solitary confinement by the sheriff and held incommunicado for a period of five days. We believe that no one would contend that such an action on the part of the sheriff had deprived the defendant of his right of appeal. The five-day limitation contained in the rule is not applicable where representatives of the state or county have totally or substantially obstructed the defendant's right of appeal.

Let us review the situation here presented:

(a) At the time of judgment and sentence, Bird's attorneys, having stated that they did not intend to appeal, were excused from further service in the case, and the trial judge stated that an appeal would avail nothing. It seems to us that Bird, being now without counsel, should have been advised of his right of appeal and the limitations thereon and given an opportunity to express his own desires.

(b) The death warrant was signed on the same day as the judgment and sentence, apparently in reliance on the statement of Bird's attorneys that they did not intend to appeal. Bird had not authorized that statement by his attorneys, and made no such statement himself.

The first sentence of the statute relative to the signing of death warrants is as follows: 'When judgment of death is rendered following conviction and no appeal is taken, or the judgment has been affirmed on appeal, a death warrant shall be issued by the clerk of the trial court, which said warrant shall be signed by a judge of said court and attested by the clerk thereof under the seal of the court. * * *' (Italics ours.) Rem.Rev.Stat. § 2210.

We pass the question as...