State v. Brown
Decision Date | 03 January 1947 |
Docket Number | 29864. |
Citation | 26 Wn.2d 857,176 P.2d 293 |
Parties | STATE v. BROWN et al. |
Court | Washington Supreme Court |
Archie Brown, Aaron Johnson, and Willie Smith were convicted of first-degree murder and defendants Brown and Johnson appeal. The appeals were dismissed for failure to perfect appeal within 90 days after filing of notices of appeal. On petition for vacation of order of dismissal of appeals, reinstatement of appeals, and for extension of time within which appellants might file their opening briefs.
Order dismissing appeals vacated.
Floyd Futter, of Pasco, George H. Freese, of Ritzville, and George O. Beardsley, of Prosser, for appellants.
William J. Gaffney, Pros. Atty., of Pasco, for respondent in the en banc hearing.
John Horrigan, Former Pros. Atty., and James Leavy, Deputy Pros. Atty., both of Pasco, for respondent at the original hearing here.
On October 13, 1945, the prosecuting attorney for Franklin county, Washington, filed with the clerk of the superior court an information charging Archie Brown, Aaron Johnson and Willie Smith with the crime of murder in the first degree in count one, and with the crime of robbery in count two. Each offense was alleged to have been committed on or about September 28, 1945. The defendants are negroes. Upon their arraignment, it was discovered that they were without funds and two lawyers of the locality in which the court was situated were appointed, by order of the court, to represent them in the trial of the matters charged in the information. This was in accordance with Laws of 1941, chapter 151, p. 427, § 1 (Rem.Supp.1941, § 2305), which fixes a maximum per diem of twenty-five dollars and a fixed payment of twenty-five dollars for preparation, to be paid by the county.
Before trial in the lower court, motions for separate trial were interposed and denied. Motions for change of venue, based upon affidavits averring strong local racial prejudice against the defendants, were filed, argued, and denied. At the opening of the trial, defendant Willie Smith pleaded guilty, and later testified as a witness for the state. Trial of the three resulted in a verdict of guilty of first degree murder, with the death penalty recommended against the defendants Archie Brown and Aaron Johnson. It was not recommended in the verdict finding defendant Willie Smith guilty. Brown and Johnson are appellants in the present proceeding.
Following denial of motions for new trial, judgment and sentence was entered against each of the defendants, with a special provision in the sentence imposed upon defendants Archie Brown and Aaron Johnson that each be hanged by the neck until dead. This judgment and sentence was entered and filed with the clerk of the superior court for Franklin county on November 29, 1945. Written notices of appeal to the supreme court of the state of Washington were served and filed in behalf of defendants Brown and Johnson on November 29, 1945.
At the time judgment and sentence was imposed upon the defendant, the court entered an order directing that the statement of facts and briefs on appeal be paid for out of public funds, under the terms of Rem.Rev.Stat. § 1729. The same attorneys continued their representation of the defendants on appeal, under the original order of the court appointing them, and now appear in this court seeking relief for their clients.
The clerk of the superior court for Franklin county did not immediately prepare and transmit to the clerk of the supreme court certified copies of the judgment appealed from and the notices of appeal, as required by Rule 12 of the rules of this court, but waited until January 3, 1946, some thirty-six days after the filing of the notices of appeal, to forward such certified copies to the clerk of this court.
On January 4, 1946, the appeals were docketed in the office of the clerk of this court. No five-dollar filing fee accompanied either notice of appeal, as required to be paid by the appellant in the appeal of criminal cases, under the terms of Rule 12. These appearance fees were finally paid by the respective attorneys for the appellants on March 1, 1946, and March 4, 1946.
It will be noticed that the date of expiration of the ninety-day period within which the appellants, under Rule 12 of the rules of this court, were permitted to perfect their appeals was February 27, 1946. The records of the clerk of this court do not reveal when notice of nonpayment of the filing fees and the indebtedness therefor of appellants' counsel was mailed to them, but the affidavit of one of the counsel recites in this connection.
Counsel for the other appellant paid his client's five-dollar appearance fee in this court on March 1, 1946, presumably in response to notice similar to that referred to in the portion of the affidavit quoted.
As stated, the ninety-day period expired on February 27th. It is apparent, therefore, that the notices of nonpayment of filing fees did not leave the office of the clerk of this court in time to enable appellants' counsel to remit such fees within the ninety-day period fixed by Rule 12.
The court reporter for the superior court for Franklin county did not complete nor place in the hands of appellants' counsel the statement of facts on appeal until February 26, 1946, which was one day Before the expiration of the ninety-day period fixed by court Rule 12 for perfecting appellants' appeal. No explanation for this delay is anywhere suggested in the record, briefs, or arguments, other than the existence of an unusually large, congested volume of appealed cases in Franklin county at that particular time.
On February 21st, counsel for one of the appellants, not having received the statement of facts and realizing that he could not prepare appellant's brief on appeal, have it printed, served, and filed in the supreme court by February 27th, which was the 'dead line date,' telephoned the prosecuting attorney for Franklin county and secured his consent to an extension of time to April 10, 1946, within which appellant's opening brief on appeal might be served and filed. This oral agreement between counsel was later reduced to the form of a written stipulation which was signed by the prosecuting attorney and counsel for the two convicted appellants. It was filed with the clerk of the superior court for Franklin county on March 5, 1946, and was transmitted to and filed with the clerk of this court on March 27, 1946.
The statement of facts was filed in this court on March 1, 1946. The clerk of this court, under paragraph 7 of Rule 12 governing his procedure in such matters, placed the case on the court's docket for automatic dismissal because of lack of jurisdiction resulting from failure of appellants' counsel to perfect their appeals within ninety days after the filing of notices of appeal. No notice of placing the cases on the dismissal docket was forwarded to either of appellants' counsel. The appeals were, accordingly, dismissed on March 22, 1946, by entry of minute order to that effect.
The matter is now Before us on petition for vacation of the order of dismissal of the appeals, reinstatement of the appeals, and for extension of time within which appellants may file their opening briefs. The prosecuting attorney of Franklin county has appeared in this court and joined petitioners in this motion.
Rule 12, paragraph (3), of the rules of this court, 18 Wash.2d 14-a, which governs the procedure on appeal is criminal cases, provides:
Paragraph (7) of Rule 12 provides:
'(7) If, upon the...
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