State ex rel. Comer v. Hall

• Decision Date: 17 May 1933
• Docket Number: 24483.
• Citation: 173 Wash. 188,22 P.2d 295
• Parties: STATE ex rel. COMER v. HALL, Judge.
• Court: Washington Supreme Court

22 P.2d 295

173 Wash. 188

STATE ex rel. COMER v. HALL, Judge.

No. 24483.

Supreme Court of Washington

May 17, 1933

Application by the State, on the relation of W. D. Comer, for a writ of prohibition to be addressed to Honorable Calvin S. Hall Judge of the Superior Court for King County, to prohibit further proceedings in the case of State against Comer.

Alternative writ quashed, and application for permanent writ denied.

Colvin & Rhodes and Charles P. Moriarty, all of Seattle, for relator.

Robert M. Burgunder and John MacGillivray, both of Seattle, for respondent.

MILLARD Justice.

The statute provides, as a penalty for commission of the crime (of which W. D. Comer was convicted on November 6, 1931, in the superior court for King county) of publishing a false statement of the amount of the assets of a savings and loan association, 'imprisonment in the state penitentiary for not more than ten years, or by a fine of not more than five thousand dollars, or by both.' Section 2265, Rem. Rev. Stat.

On March 9, 1932, his motions prior to that date for new trial and arrest of judgment having been denied, the defendant appeared in court for sentence. Following the defendant's statement in his own behalf one of defendant's attorneys addressed the court in behalf of his client, whereupon the court pronounced the following sentence: 'It is the sentence of this court, W. D. Comer, that you pay a fine of $5000.00 and that you be confined in the penitentiary of the State of Washington for a term of not less than one nor more than two years, that during your good behavior the penitentiary sentence will be suspended.'

We quote as follows, so far as pertinent, the judgment entered the same day, which judgment was prepared by the prosecuting attorney and signed by the court in the presence of the defendant:

'* * * Defendant having been duly convicted * * * it is therefore ordered, adjudged and decreed that the said defendant is guilty of the crime * * * and that he be punished by confinement at hard labor in the penitentiary of the State of Washington for the term of not less than one year and not more than two years, which sentence is stayed and suspended pending good behavior and until otherwise ordered by the court.

'It is further ordered, adjudged and decreed that said defendant be and he is hereby sentenced to pay a fine of Five Thousand ($5,000.00) Dollars, together with costs, and that he be committed to the County Jail for the County of King, State of Washington, and there safely kept in confinement until said fine and costs are paid as provided by law.'

The defendant appealed and was released upon bail. The judgment was affirmed [State v. Comer (Wash.) 17 P.2d 643], petition for a rehearing was denied, and the remittitur from this court was filed with the clerk of the superior court for King county February 25, 1933. On the same day the clerk issued a commitment for the defendant on the fine and costs. Two days later the fine and costs were paid.

During the pendency of his appeal, the defendant, with the approval of his bondsmen, was absent from the state of Washington, but at all times he remained in communication with his counsel, who always knew the whereabouts of his client. When the judgment was affirmed and the remittitur was filed, the defendant reported, apparently through his counsel, his whereabouts and his activities to the chief parole office of the state of Washington. Confirmatory of the parole department's approval of the defendant's absence from the state is a letter of March 28, 1933, from the chief parole officer at Walla Walla, replying to letter dated March 25, 1933, from defendant's attorney (Mr. Colvin). That letter reads as follows: 'Responsive to yours of the 25th instant, with enclosure, please be informed this office approves of Mr. Comer's change of residence. It will be entirely satisfactory for his monthly parole reports to be submitted through your offices. In the event he desires to make any further change of location, permission must first be obtained through this Department. Judgment and sentence in this case has not reached this institution.'

The court did not (as a reading of the judgment discloses), as a part of the suspension of defendant's sentence, require, as the statute provides, that the defendant be placed in the custody or control of the state parole officer. The statute reads as follows: 'Whenever any person never Before convicted of a felony or gross misdemeanor shall be convicted of any crime except murder, burglary in the first degree, arson in the first degree, robbery, carnal knowledge of a female child under the age of ten years, or rape, the court may in its discretion, at the time of imposing sentence upon such person, direct that such sentence be stayed and suspended until otherwise ordered by such court, and that the sentenced person be placed under the charge of a parole or peace officer during the term of such suspension, upon such terms as the court may determine. In no case shall a sentence be suspended under the provisions of this section unless the prisoner if sentenced to confinement in a penal institution be placed under the charge of a parole officer, who is a duly appointed and acting officer of the institution to which the person is sentenced.' Rem. Rev. Stat. § 2280.

On March 25, 1933, the prosecuting attorney for King county presented to the Honorable Calvin S. Hall, one of the judges of the superior court for King county, a petition for vacation or revocation of the suspended sentence of Comer, and prayed that an order be entered directing the clerk of the court to issue a commitment on the sentence imposed upon Comer. That was an ex parte proceeding of which Comer did not, nor did counsel, have notice or knowledge until in answer to the prayer of the petitioner the court entered an order for the issuance of a bench warrant for the immediate apprehension of Comer. The grounds upon which the prosecuting attorney sought a vacation of the order suspending the defendant's sentence were: The attempted suspension was void because not in compliance with the statute which requires that the sentenced person be placed under the charge of a parole or peace officer during the term of such suspension, and that the trial court was induced to suspend the sentence by false representations made to the trial court by the defendant. Counsel for Comer filed a demurrer to the prosecuting attorney's petition and a motion to quash and set aside the bench warrant, and noted the same for hearing Before the Honorable Calvin S. Hall on April 1, 1933. On that date, Comer's counsel commenced, but was not permitted to continue, argument on his motion. The court refused to entertain any argument or to make any ruling until the defendant, who had not been arrested under the bench warrant, had been brought into court. The court refused the request of defendant's counsel to 'fix a bond that might be posted for the defendant,' stating: 'No bond will be fixed until he is presented into court by the sheriff.'

On surrendering to the sheriff on April 8, 1933, Comer was taken by the sheriff Before the Honorable Calvin S. Hall who fixed the defendant's bond in the sum of $10,000. The defendant at that time presented to the Honorable Calvin S. Hall a motion for change of judge, supported by affidavit of prejudice. The motion was overruled.

On the ground that the petition of the prosecuting attorney to revoke the order suspending Comer's sentence does not state facts sufficient to give to the superior court for King county jurisdiction to vacate or modify the judgment in that cause, the defendant applied to this court for an order directing the superior court of the state of Washington for King county, and particularly the Honorable Calvin S. Hall, to show cause why the said court and the said Honorable Calvin S. Hall should not be permanently prohibited from proceeding further in the cause on the above-described petition of the prosecuting attorney for King county. In the event this court denied the application to restrain the superior court for King county, the relator prayed that, upon the ground of the respondent's prejudice against the relator, the Honorable Calvin S. Hall be prohibited from exercising further jurisdiction in the proceedings, other than that that may be necessary to transfer the cause to some other judge. We granted the application. Respondent made his return, presented motion to quash the order, and demurred to the relator's affidavit and application, upon the ground that this court has no jurisdiction of the subject-matter of this proceeding, and that the relator has made no showing entitling him to any relief from this court. Hearing having been had in this court, the case is now Before us for determination of the question whether writ should issue permanently restraining the respondent from proceeding further on the petition of the prosecuting attorney. Unless the respondent was proceeding in excess of its jurisdiction, the permanent writ should not issue.

Our first suspended sentence statute (chapter 24, p. 49, Laws of 1905) provided that in certain cases '* * * the court, in its discretion, may withhold and suspend sentence and order the accused to be released during good behavior; and the court shall have power to order his or her rearrest and pronounce sentence whenever the conduct of the accused shall, in the opinion of the court, make such action proper.' Section 1.

That statute was repealed by the Criminal Code of 1909 (section 52, chapter 249, p. 906, Laws of 1909), and in lieu thereof the following section (section 28, chapter 249, p. 896, Laws of 1909) was enacted: 'Whenever any person under the age of twenty-one years shall be...