State v. Durham

• Decision Date: 13 December 1951
• Docket Number: No. 31943,31943
• Citation: 238 P.2d 1201,39 Wn.2d 781
• Parties: STATE, v. DURHAM.
• Court: Washington Supreme Court

Page 781

39 Wn.2d 781

238 P.2d 1201

STATE, v.DURHAM.

No. 31943.

Supreme Court of Washington, en Banc.

Dec. 13, 1951.

Charles O. Carroll, F. A. Walterskirchen, Seattle, for relator.

Kennett, McCutcheon & Soderland, Seattle, for defendant.

HAMLEY, Justice.

This is an original application for a writ of prohibition to restrain the superior court of King county from holding a hearing to determine whether Nelson Durham is a safe person to be at large.

Durham was charged in two counts with the crime of accepting the earnings of a common prostitute.At the time of arraignment, he stood mute and a plea of not guilty was entered on his behalf by the court.His counsel thereafter entered, on his behalf, the additional plea of mental irresponsibility, claiming that Durham was mentally irresponsible at the time of the alleged offense, but sane and responsible at the time of trial.Prior to the trial, a motion for continuance on the ground that defendant was mentally incapable of giving aid to his attorney during the trial, was made and denied.

At the conclusion of the trial, the court submitted to the jury the forms for general and special verdicts, as prescribed by Rem.Rev.Stat. § 2175, where such a plea has been entered and evidence has been received thereon.The jury returned a general verdict of not guilty as to each count.It also returned special verdicts as to each count, in which it was found that (1)defendant committed the crime charged; (2)he was mentally irresponsible at that time; (3)he was mentally responsible at the time of the trial; and (4) there was such a likelihood of a relapse or recurrence of his mentally irresponsible condition as to render him unsafe to be at large.

Defendant then filed motions for arrest of judgment as to special verdictNo. 4, and, in the alternative, for a new trial limited to that issue.A motion for new trial as to the entire case was withdrawn by defendant.The motions came on for argument on October 6, 1951.At the conclusion of the argument, the trial court orally announced that it would deny the motion for new trial as limited to the issue covered by special verdict No. 4.The court also announced that it would take under advisement the motion to arrest judgment as to the determination made under that special verdict.The proceeding now before us does not involve either of these motions or the court's announced rulings thereon.

During the course of the oral argument on these motions, counsel for defendant orally requested the trial court to conduct an inquiry as to defendant's then condition of 'safeness to be at large.'The deputy prosecuting attorney resisted this request, but the trial judge indicated that he would grant it.In this connection the trial court said: 'I am granting the request of counsel that I shall take jurisdiction to go into the matter and determine whether any human being can produce one iota of evidence before this court now that this man is unsafe to be at large.I will set it down for hearing for that purpose.And I will pass upon that matter at that time, and also on the motion [for arrest of judgment] * * *.'

It will be observed that the purpose of the hearing, as announced by the trial court, was not to review the jury's special verdict No. 4 to the effect that defendant was unsafe to be at large.Rather, it was to receive new evidence for the purpose of determining whether defendant was entitled to his immediate release on the ground that he is now (whatever his condition may have been at the time of the jury verdict) a safe person to be at large.

In the return filed in this proceeding, the trial court intimates that a second reason why the court desired to hold the hearing was for the purpose of determining whether defendant had been sufficiently competent to stand trial and to receive sentence.The writ of prohibition is not directed against the holding of a hearing for that purpose.The only question before us is whether, under the circumstances of this case, the trial court had jurisdiction to proceed in the indicated manner, for the purpose of determining whether defendant should be released because he is now a safe person to be at large.

A writ of prohibition may be issued by this court to arrest the proceedings of the superior court when such proceedings are without or in excess of the jurisdiction of the latter court.State ex rel. Waterman v. Superior Court, 127 Wash. 37, 220 P. 5;...