State v. Dooly

• Decision Date: 07 August 1942
• Docket Number: 28712.
• Citation: 128 P.2d 486,14 Wn.2d 459
• Parties: STATE v. DOOLY.
• Court: Washington Supreme Court

128 P.2d 486

14 Wn.2d 459

STATE v. DOOLY.

No. 28712.

Supreme Court of Washington

August 7, 1942

Department 2.

H. J Dooly was convicted of petit larceny by check and of being a habitual criminal, and he appeals.

Judgment affirmed.

Appeal from Superior Court, Yakima County; Robert J. Willis, judge.

J. P Tonkoff, of Yakima, and H. J. Dooly, of Walla Walla, per se for appellant.

Lloyd L. Wiehl, Pros. Atty., and Ian R. MacIver, both of Yakima, for respondent.

JEFFERS Justice.

On or about January 4, 1940, H. J. Dooly was, by an information filed in the superior court for Yakima county, in cause No. 5668 of that county, charged with the crime of 'petit larceny by check,' under Rem.Rev.Stat., § 2601-2. On May 16, 1940, Dooly pleaded guilty to the charge, and the court entered judgment finding him guilty of the offense charged, but no sentence was imposed at that time.

On May 16, 1940, an information was filed in the superior court for Yakima county, charging Dooly with being 'an habitual criminal.' In this information it is alleged that defendant has been twice convicted, once of a felony (describing the crime), and second, of the crime charged in cause No. 5668. The habitual criminal case was No. 5754 of the records of the superior court for Yakima county. Defendant also pleaded guilty to the charge of being an habitual criminal, and the court adjudged him so to be, but did not impose any sentence in this case.

Immediately after Dooly had been adjudged to be an habitual criminal, the state moved for judgment and sentence in cause No. 5668 (the check charge), that being the last substantive offense of which defendant had been convicted, whereupon the court entered judgment and sentence, under which Dooly was adjudged guilty of the crime of petit larceny by check, and ordered confined at hard labor in the penitentiary at Walla Walla, for a period of not more than twenty years. In this judgment and sentence, no reference was made to the fact that Dooly had been adjudged to be an habitual criminal, and that the increased punishment imposed upon defendant for the substantive offense was because of such adjudication, but in so far as appears from the judgment, defendant was sentenced to the penitentiary for not more than twenty years on a petit larceny conviction.

Petit larceny is a gross misdemeanor. Rem.Rev.Stat., § 2601-2, under which the petit larceny charge was brought, contains no provision for punishment, and the only punishment, therefore which could be imposed for a conviction under that section, is that provided by Rem.Rev.State., § 2267, which provides: 'Every person convicted of a gross misdemeanor for which no punishment is prescribed in any statute in force at the time of conviction and sentence, shall be punished by imprisonment in the county jail for not more than one year, or by a fine of not more than one thousand dollars, or by both.'

On or about January 31, 1942, the superior court entered an order directing the superintendent of the penitentiary to bring Dooly Before it for the imposition of a proper judgment and sentence. On February 9, 1942, Dooly was brought Before the court, being at that time represented by counsel (not present counsel), whereupon the state moved for the imposition of a proper judgment and sentence in cause No. 5668. Defendant objected to the imposition of judgment and sentence, upon the ground that the court was without jurisdiction of the person, the subject matter, or the crime charged. The court thereafter, and on February 9, 1942, in cause No. 5668, entered judgment and sentence under which defendant was ordered confined in the penitentiary at Walla Walla for not more than twenty years. Defendant has appealed from this judgment and sentence.

In view of the confusion which has arisen in these habitual criminal cases as to the form of judgment to be entered, we quote a portion of the judgment of February 9th, believing as we do that at least it presents a form which is proper in these cases. After reciting that on May 16th, 1940, the defendant was charged and adjudged to be an habitual criminal, the judgment provides: 'It is ordered, adjudged and decreed that said J. H. Dooly is guilty of the crime of petit larceny by check, and by reason of the fact that he has been heretofore adjudged to be an habitual criminal, as hereinabove stated, that he be punished by confinement at hard labor at the state penitentiary of Washington at Walla Walla, Washington, for a period of not more than twenty years * * *.'

We are of the opinion the above outlines a proper procedure to be followed in these cases. The judgment and sentence is imposed in the petit larceny case and for that substantive offense, but the increased penalty is because of the adjudication that appellant is an habitual criminal, which fact should appear in the judgment and sentence.

The statement of facts filed herein consists of two pages and the certificate of the trial judge. It does not purport to contain any testimony, but consists of a recitation of what transpired Before the court. No affidavits or exhibits are attached to or made a part of the statement, and the judge's certificate refers to none.

Appellant has filed in this court affidavits purporting to show certain proceedings in the United States district court for the eastern district of Washington, and the action taken by Honorable Lewis B. Schwellenbach, judge of that court. From these affidavits it appears that appellant demanded that his then attorney take certain action relative to such proceedings. It does not appear from the record properly Before us that the trial court had presented to it, or that it considered, anything pertaining to any action taken by the United States district court, and we are of the opinion that we cannot consider any matter brought up by way of affidavits which are not a part of the statement of facts and which are not referred to in the certificate of the trial judge. Shorno v. Doak, 45 Wash. 613, 88 P. 1113; March v. West Fir Logging Co., 154 Wash. 137, 281 P. 340.

While there are certain questions raised by appellant in his opening brief to which we shall later refer, we are of the opinion that on the record Before us there are two main questions to be decided: (1) Was the judgment and sentence imposed by the court May 16, 1940, in cause No. 5668, void or voidable only? (2) Did the court have the right, after the expiration of more than one year from the date of the original judgment and sentence, to order the appellant brought Before it and impose the judgment and sentence from which this appeal is taken?

The judgment and sentence of May 16, 1940, showed only that appellant had been convicted of the crime of petit larceny by check. This being true, the court was not authorized to do other than order appellant to be confined in the county jail for not more than one year, or order him to pay a fine of not more than one thousand dollars, or to impose both a jail sentence and a fine. The court was absolutely without authority under the statute to order appellant confined in the penitentiary at Walla Walla for the crime of petit larceny.

The authorities seem to be quite universal that where the law provides a place of imprisonment, the court cannot direct a different place, and if it does so, the sentence is void. 15 Am.Jur. 119, § 462. In the same volume of Am.Jur., p. 120, § 463, we find this statement: 'If a sentence is absolutely unauthorized or of an entirely different character from that authorized by law, it is generally held that such sentence is void and that the...