State v. Cullen, 28659.

• Decision Date: 26 June 1942
• Docket Number: 28659.
• Citation: 14 Wn.2d 105,127 P.2d 257
• Parties: STATE v. CULLEN.
• Court: Washington Supreme Court

127 P.2d 257

14 Wn.2d 105

STATE v. CULLEN.

No. 28659.

Supreme Court of Washington

June 26, 1942

Department 2.

Ray Cullen was convicted of second degree burglary, and he appeals.

Affirmed.

Appeal from Superior Court, King County; Roger J. Meakim, judge.

Adam Beeler, of Seattle, for appellant.

B. Gray Warner and Patrick M. Tammany, both of Seattle, for respondent.

BLAKE Justice.

The defendant was convicted of second degree burglary. In the course of the trial, it developed that, in 1928 or 1929, he had been convicted of a gross misdemeanor for which he had been sentenced to a term of one year in the county jail. While serving the sentence (and about six months Before its expiration), he was granted an unconditional executive pardon.

When he was brought up for sentence after conviction in the instant case, he entreated the court to suspend sentence under Rem.Rev.Stat. § 2280, or put him on probation under Rem.Ruv.Stat. § 10249-5a (1940 Sup.). Under Rem.Rev.Stat. § 2280, the court may, in its discretion, suspend the sentence of a person convicted of crime who has ' never Before [been] convicted of a felony or gross misdemeanor.' (Italics ours.) Under Rem.Rev.Stat. § 10249-5a (1940 Sup.), the court may grant probation to a person convicted of crime: ' Provided, however Probation shall not be granted to any person who is not eligible under the law to receive a suspended sentence.' (Italics ours.) Included in the court's certificate to the bill of exceptions is the following:

'I do further certify that on the said 31st day of January, 1942, at the time of imposing judgment and sentence upon the appellant, I stated in Open Court that I was prevented from exercising may discretion and could give no consideration to the request of the appellant for either a suspended sentence or a deferred sentence, notwithstanding the fact that the testimony at the trial established the fact that an unconditional pardon had been given to the appellant by the Governor or the Chief Executive of the State of Washington, by reason of the rule laid down by the Supreme Court of the State of Washington in the case of State v. Edelstein, 146 Wash. 221 , supra.'

From judgment and sentence accordingly entered, defendant appeals, charging error only in that the court declined to exercise any discretion in passing upon his plea for probation or a suspended sentence.

From the above-quoted portion of the court's certificate to the bill of exceptions, it may be fairly inferred that, but for the decision of this court in State v. Edelstein, 146 Wash. 221, 262 P. 622, it would have exercised the discretion vested in it by Rem.Rev.Stat. § 2280 and § 10249-5a (1940 Sup.), in favor of appellant. In other words, but for that decision, the court would have put appellant on probation or given him a suspended sentence.

That, in the light of the decision in the Edelstein case, the court was without authority to suspend sentence or grant probation, there can be no doubt. Indeed, the appellant, by implication, at least, concedes the point. For the burden of his argument here is that the Edelstein case is fundamentally wrong and should be overruled. In that case, it was held that, on a charge of being an habitual criminal in that the accused had twice Before been convicted of a felony, it could not be shown in defense that he had received an unconditional pardon for one of his previous convictions.

The same principle had been previously applied in the case of State v. Serfling, 131 Wash. 605, 230 P. 847, where it was held that proof of a prior conviction was competent as affecting the credibility of a witness, notwithstanding he had received an unconditional pardon; and, again, in State v. Hazzard, 139 Wash. 487, 247 P. 957, 958, 47 A.L.R. 538, where it was held that a pardon purporting to restore defendant 'to all the rights and privileges she forfeited by reason of her conviction * * *' did not restore her prior rights to a license to practice medicine.

The appellant attacks the principle, as applied in the Edelstein case, on three grounds: (1) That it is against the weight of authority; (2) that the decision is mainly predicated upon a misapprehension of Bishop's views on the subject as expressed in his work on 'Criminal Law'; and (3) that the principle, as applied in the Edelstein case and by the trial court in this, puts a limitation on the pardoning power vested in the Governor under the constitution.

First. As the decisions of courts of last resort now stand, there can be no doubt that the Edelstein case is against the weight of authority. Whether it was so at the time rendered is questionable. In any event, it has been criticized by other courts in subsequent cases--notably in Scrivnor v. State, 113 Tex.Cr.R. 194, 20 S.W.2d 416, and Kelley v. State, 204 Ind. 612, 185 N.E. 453.

Second. This criticism is based primarily upon what appears to be a misapprehension of Bishop's personal views upon the effect of an unconditional pardon in a subsequent prosecution. In the course of the opinion in the Edelstein case [146 Wash. 221, 262 P. 630], the court said:

'In 1 Bishop on Criminal Law (9th Ed.) § 963, subd. 4, that learned author says:

"It has been held in Ohio that a pardon obliterates an offense and that hence the conviction in regard to which it is granted is not a former conviction within the habitual criminal act. This reasoning is very technical. A person who has received clemency but instead of reforming persists in his evil ways certainly should not as to a subsequent offense be treated better than if the pardon had been denied. Accordingly the Kentucky court had held that such a pardon does not relieve him from any penal consequences resulting from his subsequent offenses, and this reasoning has been adopted by the United States Supreme Court." As pointed out in Scrivnor v. State, supra, the quotation expresses the views of the editors of the ninth edition of Bishop's work, published twenty-one years after his death. His own views found in the original edition, and

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