State v. Canady
| Decision Date | 08 December 1966 |
| Docket Number | No. 38043,38043 |
| Citation | 69 Wn.2d 886,421 P.2d 347 |
| Parties | The STATE of Washington, Respondent, v. Edward Nelson CANADY, Appellant. |
| Court | Washington Supreme Court |
Reaugh, Hart, Allison, Caley, Mortimer & Prescott, James Gooding, Seattle, for appellant.
Charles O. Carroll, Pros. Atty., Walter Greenway, Seattle, for respondent.
On September 15, 1964, a complaint was filed in the Seattle District Justice Court charging the defendant, Edward Nelson Canady, with burglary in the second degree. The complaint made no mention of any weapon. The defendant entered a plea of not guilty. A hearing was held, and the case was bound over to the superior court on motion of the state. On October 13, 1964, an information, worded identically to the earlier complaint, was filed in superior court. Trial was set for December 1, 1964. On October 29, 1964, the prosecutor filed an amended information, still in one count, which added the words '* * * and then there being armed with a certain deadly weapon, to-wit: a .32 caliber Colt Automatic pistol, Serial No. 280798 * * *.' The defendant was tried and convicted of burglary in the second degree, and a special verdict was returned which found that he was armed with a deadly weapon at the time of the offense. The trial court sentenced the defendant to a maximum of fifteen years in the penitentiary. He now appeals.
The defendant makes three assignments of error, all of which relate to three statutes concerning the carrying of a deadly weapon at the time a crime is committed. The three statutes, in pertinent parts, read as follows:
RCW 9.41.020. Committing crime when armed--Resisting arrest by firing upon officer. If any person shall commit or attempt to commit a crime of violence when armed with a firearm, such person shall in addition to the penalty provided by statute for the crime when committed without use of a firearm, be guilty of a felony and punished by imprisonment for not less than five years.
RCW 9.95.015. Finding of fact or special verdict establishing defendant armed with deadly weapon. In every criminal case wherein conviction would require the board of prison terms and paroles to determine the duration of confinement and wherein there has been an allegation and evidence establishing that the accused was armed with a deadly weapon at the time of the commission of the crime, the court shall make a finding of fact of whether or not the accused was armed with a deadly weapon, as defined by RCW 9.95.040, at the time of the commission of the crime, or if a jury trial is had, the jury shall, if it find the defendant guilty, also find a special verdict as to whether or not the defendant was armed with a deadly weapon, as defined in RCW 9.95.040, at the time of the commission of the crime.
RCW 9.95.040. Board to fix duration of confinement--Minimum terms prescribed for certain cases. * * *
The following limitations are placed on the board of prison terms and paroles with regard to fixing the duration of confinement in certain cases, notwithstanding any provisions of law specifying a lesser sentence, to wit:
(1) For a person not previously convicted of a felony but armed with a deadly weapon at the time of the commission of his offense, the duration of confinement shall not be fixed at less than five years.
(2) For a person previously convicted of a felony either in this state or elsewhere and who was armed with a deadly weapon at the time of the commission of his offense, the duration of confinement shall not be fixed at less than seven and one-half years.
The words 'deadly weapon,' as used in this section include, but are not limited to, any instrument known as a blackjack, sling shot, billy, sand club, sandbag, metal knuckles, any dirk, dagger, pistol, revolver, or any other firearm * * *.
The defendant first argues that the amended information filed against him was duplicitous in that it charged two separate offenses in the same count. This argument presupposes that RCW 9.41.020 creates a separate and distinct felony, and that this second felony was charged in the amended information. The state seems to concede, and we agree, that RCW 9.41.020, since its amendment by ch. 124, § 2, Laws of 1961, creates a new felony; viz., the commission of a crime of violence when armed with a firearm. The information in the instant case, however, alleged that the defendant was armed with a 'deadly weapon,' the phrase used in RCW 9.95.015 and RCW 9.95.040. The information did not charge that the defendant 'committed a crime of violence, to wit, burglary in the second degree, when armed with a firearm,' nor did the words 'crime of violence' or 'firearm,' as used in RCW 9.41.020, appear in the information. Not only is there no indication from the information that any crime other than burglary was charged, but the information, the procedure at the trial, and the special verdict sought all indicate a proceeding under RCW 9.95.015. The defendant was convicted of only one crime, that of burglary in the second degree, which was clearly charged in the information. He was informed of that which he was to defend against, and he was not prejudiced in any way. The information was not duplicitous. See State v. Sullivan, 172 Wash. 530, 22 P.2d 56 (1933). We note in passing that it would be a better practice for prosecutors to refer specifically to either RCW 9.95.015 or to RCW 9.41.020 in filing similar informations. Such a precaution should preclude possible questions raised subsequent to future criminal trials as to whether a defendant has been twice jeopardized for the same offense, as well as precluding contentions of duplicity, when similar informations are involved.
The second argument advanced by the defendant is that he was denied equal protection of the laws, in violation of the fourteenth amendment to the United States Constitution and art. 1, § 12 of the Washington Constitution, by what he claims is unbridled discretion in prosecuting officials due to what he alleges is an 'apparent conflict' between RCW 9.95.040 and RCW 9.41.020.
Initially, we will say that we see no conflict between the two statutes, either apparent or real. RCW 9.95.040, in conjunction with RCW 9.95.015, establishes a procedure by which a finding of fact or a special verdict that the defendant was armed with a 'deadly weapon' at the time of committing an 'offense' will make it mandatory for the board of prison terms and paroles to set either a five or a seven and one-half year minimum period of confinement, depending on the person's previous record. See State v. Coma, 69 Wash.Dec.2d 180, 417 P.2d 853 (1966), for an extensive discussion of the legislative history, significance, and application of RCW 9.95.015 and RCW 9.95.040. As discussed above, RCW 9.41.020 provides that when a person commits a 'crime of violence' while armed with a 'firearm' he is guilty of a separate and distinct felony, and upon conviction shall be imprisoned at least five years in addition to whatever sentence he receives for the basic crime. The two statutes deal with separate matters. It is true that a given criminal transaction involving a firearm may result in application of both provisions. It should not be startling, however, that a factor which results in a mandatory minimum term of imprisonment for one crime may also itself be a crime under another statute, particularly when there is good reason for the legislature 'to turn the screw of the criminal machinery.' 1 The two statutes work in conjunction and are not in conflict.
The exact thrust of the defendant's equal protection argument is somewhat unclear. His contention could be construed to mean that, since the prosecution alone determined whether or not to make the deadly weapon allegation under RCW 9.95.015, 'unbridled discretion' was vested in the prosecution, thereby depriving the defendant of equal protection of the laws. The defendant cites Olsen v. Delmore, 48 Wash.2d 545, 295 P.2d 324 (1956), in support of his position. In the Olsen case, this court, in a five-to-four decision, held that when One statute vested in the prosecution the power to proceed for either a gross...
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...v. Williams, 9 Wash.App. 622, 625, 513 P.2d 854 (1973); See State v. Zornes, 78 Wash.2d 9, 23, 475 P.2d 109 (1970); State v. Canady, 69 Wash.2d 886, 891, 421 P.2d 347 (1966). We consider the statute a proper legislative investiture of authority to the executive branch. State v. Anderson, su......
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...requirements of proof and the State's ability to meet them are the considerations guiding the prosecutor's discretion. State v. Canady, 69 Wash.2d 886, 421 P.2d 347 (1966). Under RCW 10.95.040(1) the prosecutor must file a notice of a special sentencing proceeding to determine whether the d......
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