State v. Fair

CourtUnited States State Supreme Court of Washington
Writing for the CourtANDERS, J.
Citation76 P. 731,35 Wash. 127
Decision Date02 May 1904
PartiesSTATE v. FAIR et al.

76 P. 731

35 Wash. 127

STATE
v.
FAIR et al.

Supreme Court of Washington

May 2, 1904


Appeal from Superior Court, Spokane County; Henry L. Kennan, Judge.

Frank Fair was convicted of robbery, and he appeals; and certain witnesses--Frank Rutledge and others--appeal from an order disallowing their fees as certified by the clerk. Affirmed on the appeal of accused, and the other appeal dismissed.

[35 Wash. 128] Robertson, Miller & Rosenhaupt, for appellants.

Horace Kimball and R. M. Barnhart, for the State.

ANDERS, J.

On and prior to the night of Saturday, April 4, 1903, Robert G. Miller and his brother, under the firm name of Miller Bros., were conducting a meat market on East Sprague avenue, in the city of Spokane. About 9 o'clock on the evening of that date, and while Robert G. Miller and Charles Johnson, the driver of the market wagon, were preparing to close the market for the night, three masked men, with pistols in their hands, suddenly entered the room, 'held up' Miller and Johnson, and took from the cash register, which was on the corner of the counter, and carried away, $70 belonging to said Robert G. Miller and his brother. At the time or the robbery the market and its contents, including the cash register and the money therein, were in the care and possession of said Robert G. Miller. Some time in June following, Frank Fair and Sam Eder were arrested and identified as being two of the [35 Wash. 129] persons who committed the offense. The third and unknown man--the one who rifled the cash register--has never been apprehended or discovered. Subsequently to the arrest of Fair and Eder the prosecuting attorney filed an information against them in the superior court for Spokane county, the charging part of which is as follows: 'That the said defendants, Frank Fair and Sam Eder, on the 4th day of April, 1903, in the county of Spokane and state of Washington, then and there being, did then and there willfully, unlawfully, feloniously, and forcibly take from the immediate presence of Robert G. Miller, and against his will, a certain article of value, towit, seventy dollars in money, of the value of [76 P. 732] seventy dollars, the property of and belonging to Robert G. Miller, by then and there willfully, unlawfully, and feloniously pointing at said Robert G. Miller a loaded revolver, thereby putting said Robert G. Miller in fear.' At his own request the defendant Fair was tried separately, and at the trial he set up an alibi, viz., that at the time of the robbery he was at the town of Prosser, Wash., which, according to the evidence, is about 186 miles distant from the city of Spokane. To establish this defense, the defendant testified, and produced several witnesses who also testified, that he was at Prosser at the time the robbery with which he was charged was committed. The jury, however, found the defendant guilty as charged; and the court, after denying a motion in arrest of judgment, and also a motion for a new trial, sentenced the defendant to imprisonment in the penitentiary for the term of 15 years. To reverse this judgment and sentence, the defendant has appealed.

Section 829 of the Code of Washington, commonly known as the 'Code of 1881' (section 7103, Ballinger's Ann. Codes and St.), defined the crime of robbery, and provided that every person convicted of that offense should be punished by imprisonment[35 Wash. 130] in the penitentiary not less than 1 nor more than 20 years. This section of the statute was amended by an act of the Legislature approved February 5, 1903, which changed the minimum imprisonment for the offense from one to five years. Laws 1903, p. 5, c. 7. This amendatory statute, not carrying an emergency clause, did not take effect until after the commission of the crime with which appellant is charged. Neither did it contain a saving clause as to pending prosecutions, or as to offenses committed under the old statute. In 1901, however, the Legislature, at an extraordinary session, passed a general act saving prosecutions in cases of the repeal or amendment of criminal statutes. Laws Ex. Sess. 1901, p. 13, c. 6. The trial of the appellant occurred on July 17, 1903, which was after the amending statute of the 5th of February became effective. And it is contended by the learned counsel for appellant that at the time of the trial there was no law in existence defining the crime of robbery or prescribing the punishment therefor, and that the trial court erred in holding the contrary. This contention is based upon the notion that the general act above mentioned, of June 13, 1901, is invalid for the reason that the Legislature had not the power to pass it at that extraordinary session. Section 7 of article 3 of the state constitution, relating to the powers of the governor, provides as follows: 'He may, on extraordinary occasions, convene the legislature by proclamation, in which shall be stated the purposes for which the Legislature is convened.' By virtue of the power thus vested in him by the Constitution, Gov. Rogers convened the Legislature in extraordinary session on June 11, 1901, and the purpose for which it was so convened was stated in his proclamation as follows: [35 Wash. 131] 'THE PURPOSE FOR WHICH THE LEGISLATURE IS caLled together is that it mAy pass upon, confirm or amend the law relating to capital punishment.' It was the exclusive province of the governor, under the Constitution, to determine whether an occasion existed of sufficient gravity to require an extra session of the Legislature, and his conclusion in that regard is not subject to review by the courts. Farrelly v. Cole, 60 Kan. 356, 56 P. 492, 44 L. R. A. 464. That such is the law is not disputed by counsel for...

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27 practice notes
  • Gerberding v. Munro, No. 65059-4
    • United States
    • United States State Supreme Court of Washington
    • January 8, 1998
    ...(1972) ("[T]he legislative power is absolute unless expressly or by fair implication limited in the constitution.") (citing State v. Fair, 35 Wash. 127, 76 P. 731 (1904)). If our constitution does not affirmatively limit the Page 215 legislature's, or the people's, ability to set reasonable......
  • Wash. State Farm Bureau Feder. v. Gregoire, No. 78637-2.
    • United States
    • United States State Supreme Court of Washington
    • November 21, 2007
    ...982 P.2d 611 (1999); State ex rel. Distilled Spirits Inst., Inc. v. Kinnear, 80 Wash.2d 175, 180, 492 P.2d 1012 (1972); State v. Fair, 35 Wash. 127, 133, 76 P. 731 (1904). "`Insofar as legislative power is not limited by the constitution it is unrestrained.'" Cedar County Comm. v. Munro, 13......
  • Freedom Found., Nonprofit Corp. v. Gregoire, No. 86384–9.
    • United States
    • United States State Supreme Court of Washington
    • October 17, 2013
    ...session of the legislature because that decision is “the exclusive province of the governor, under the constitution.” State v. Fair, 35 Wash. 127, 131, 76 P. 731 (1904). ¶ 63 That said, the three branches are not “hermetically sealed off from one another.” Carrick, 125 Wash.2d at 135, 882 P......
  • Idaho State AFL-CIO v. Leroy, AFL-CIO
    • United States
    • United States State Supreme Court of Idaho
    • January 29, 1986
    ...in that regard is not subject to review by the courts. Farrelly v. Cole, 60 Kan. 356, 56 Pac. 492, 44 L.R.A. 464.' (State v. Fair, 35 Wash. 127, 102 Am.St. 897, 76 Pac. 731.)" Gallet, supra at 638-39, 10 P.2d at The decision that a legislative bill is so urgently and immediately needed as t......
  • Request a trial to view additional results
27 cases
  • Gerberding v. Munro, No. 65059-4
    • United States
    • United States State Supreme Court of Washington
    • January 8, 1998
    ...(1972) ("[T]he legislative power is absolute unless expressly or by fair implication limited in the constitution.") (citing State v. Fair, 35 Wash. 127, 76 P. 731 (1904)). If our constitution does not affirmatively limit the Page 215 legislature's, or the people's, ability to set reasonable......
  • Wash. State Farm Bureau Feder. v. Gregoire, No. 78637-2.
    • United States
    • United States State Supreme Court of Washington
    • November 21, 2007
    ...982 P.2d 611 (1999); State ex rel. Distilled Spirits Inst., Inc. v. Kinnear, 80 Wash.2d 175, 180, 492 P.2d 1012 (1972); State v. Fair, 35 Wash. 127, 133, 76 P. 731 (1904). "`Insofar as legislative power is not limited by the constitution it is unrestrained.'" Cedar County Comm. v. Munro, 13......
  • Freedom Found., Nonprofit Corp. v. Gregoire, No. 86384–9.
    • United States
    • United States State Supreme Court of Washington
    • October 17, 2013
    ...session of the legislature because that decision is “the exclusive province of the governor, under the constitution.” State v. Fair, 35 Wash. 127, 131, 76 P. 731 (1904). ¶ 63 That said, the three branches are not “hermetically sealed off from one another.” Carrick, 125 Wash.2d at 135, 882 P......
  • Idaho State AFL-CIO v. Leroy, AFL-CIO
    • United States
    • United States State Supreme Court of Idaho
    • January 29, 1986
    ...in that regard is not subject to review by the courts. Farrelly v. Cole, 60 Kan. 356, 56 Pac. 492, 44 L.R.A. 464.' (State v. Fair, 35 Wash. 127, 102 Am.St. 897, 76 Pac. 731.)" Gallet, supra at 638-39, 10 P.2d at The decision that a legislative bill is so urgently and immediately needed as t......
  • Request a trial to view additional results

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