State v. Feilen

CourtUnited States State Supreme Court of Washington
Writing for the CourtCROW, J.
Citation70 Wash. 65,126 P. 75
PartiesSTATE v. FEILEN.
Decision Date03 September 1912

126 P. 75

70 Wash. 65

STATE
v.
FEILEN.

Supreme Court of Washington

September 3, 1912


Department 1. Appeal from Superior Court, King County; John F. Main, Judge.

Peter Feilen was convicted of crime, and he appeals. Affirmed.

[70 Wash. 66] Sidney J. Williams and William R. Bell, for appellant.

John F. Murphy, Hugh M. Caldwell, and H. B. Butler, all of Seattle, for the State. [126 P. 76]

CROW, J.

The defendant was convicted of the crime of statutory rape, committed upon the person of a female child under the age of 10 years, and was sentenced to imprisonment for life in the state penitentiary. The final judgment and sentence, from which he has appealed, further ordered, adjudged, and decreed that 'an operation be performed upon said Peter Feilen for the prevention of procreation, and the warden of the penitentiary of the state of Washington is hereby directed to have this order carried into effect at the said penitentiary by some qualified and capable surgeon by the operation known as vasectomy; said operation to be carefully and scientifically performed.'

By his first assignment appellant contends that the trial judge erred in submitting the case to the jury, for the reasons (1) that no degree of penetration was shown, and (2) that the testimony of his victim, the prosecuting witness, was not corroborated by such other evidence as tended to convict him of the crime charged. We find no merit in these contentions. The evidence will not be discussed or stated in this opinion, as no good purpose could be thereby served. We are convinced that, under the rule announced in State v. Kincaid, 124 P. 684, the evidence was sufficient to comply with the requirements of section 2437, Rem. & Bal. We are also satisfied that the evidence afforded that degree and character of corroboration required by section 2155, Rem. & Bal., and from all of the evidence we conclude that the only verdict that should have been returned was the one that the jury did return. The case was for the jury, and their verdict will not be disturbed.

Appellant was prosecuted under section 2436, Rem. & Bal., [70 Wash. 67] and the penalty of life imprisonment was properly imposed. Section 2287, Rem. & Bal., provides that: 'Whenever any person shall be adjudged guilty of carnal abuse of a female person under the age of ten years, or of rape, or shall be adjudged to be an habitual criminal, the court may, in addition to such other punishment or confinement as may be imposed, direct an operation to be performed upon such person, for the prevention of procreation.' It was under the authority of this section that the trial judge ordered the operation of vasectomy, and appellant by his remaining assignments contends that it is unconstitutional, in that an operation for the prevention of procreation is a cruel punishment, prohibited by article 1, § 14, of the state Constitution, which directs that 'excessive bail shall not be required, excessive fines imposed, nor cruel punishment inflicted.' As the statute does not prescribe any particular operation for the prevention of procreation, the trial judge ordered that the operation known as vasectomy be carefully and skillfully performed. The question then presented for our consideration is whether the operation of vasectomy, carefully and skillfully performed, must be judicially declared a cruel punishment forbidden by the Constitution. No showing has been made to the effect that it will in fact subject appellant to any marked degree of physical torture, suffering, or pain. That question was doubtless considered and passed upon by the Legislature when it enacted the statute.

Appellant further contends that the imposition of the alleged cruel punishment as a part of the sentence necessitates a reversal of the judgment. This would not be true, even though we were to hold the operation to be an infliction of cruel punishment, as the judgment of conviction would have to be affirmed, with directions to enforce the penalty of life imprisonment. When a sentence is legal in one part and illegal in another, it is not open to controversy that the illegal, if separable, may be disregarded, and the legal enforced. United [70 Wash. 68] States v. Pridgeon, 153 U.S. 48, 14 S.Ct. 746, 38 L.Ed. 631; State v. Williams, 77 Mo. 310, 313.

The crime of which appellant has been convicted is brutal, heinous, and revolting, and one for which, if the Legislature so determined, the death penalty might be inflicted without infringement of any constitutional inhibition. It is a crime for which in some jurisdictions the death penalty has been imposed. 33 Cyc. 1518. If for such a crime death would not be held a cruel punishment, then certainly any penalty less than death, devoid of physical torture, might also be inflicted. In the matter of penalties for criminal offenses, the rule is that the discretion of...

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30 practice notes
  • In re Williams, 99344-1
    • United States
    • United States State Supreme Court of Washington
    • October 7, 2021
    ...decision from this court appears to interpret article I, section 14 as equivalent to the Eighth Amendment. 496 P.3d 299 State v. Feilen , 70 Wash. 65, 67, 126 P. 75 (1912).5 But Gunwall clarifies that courts consider not just the particular constitutional provision but all statutory and cas......
  • State v. Tyler, No. 73564–1–l
    • United States
    • Court of Appeals of Washington
    • August 15, 2016
    ...it is the legislature, and not the trial court, that possesses the constitutional authority to create a crime. See, e.g., State v. Feilen, 70 Wash. 65, 70, 126 P. 75 (1912) (legislature has “ ‘the inherent power to prohibit and punish any act as a crime’ ” (internal quotation marks omitted)......
  • Skinner v. State of Oklahoma Williamson, No. 782
    • United States
    • United States Supreme Court
    • June 1, 1942
    ...provided for is cruel and unusual punishment and violative of the Fourteenth Amendment. See Davis v. Berry, supra. Cf. State v. Feilen, 70 Wash. 65, 126 P. 75, 41 L.R.A.,N.S., 418, Ann.Cas.1914B, 512; Mickle v. Henrichs, D.C., 262 F. 687. We pass those points without intimating an opinion o......
  • State v. Whitfield, No. 32655-8-II.
    • United States
    • Court of Appeals of Washington
    • May 16, 2006
    ...that "`[t]he legislature is clothed with power well nigh unlimited to define crimes and fix their punishments.'" State v. Feilen, 70 Wash. 65, 70, 126 P. 75 (1912) (quoting State v. Woodward, 68 W.Va. 66, 68, 69 S.E. 385 (1910)). "The power of the legislature to define crimes and prescribe ......
  • Request a trial to view additional results
30 cases
  • In re Williams, 99344-1
    • United States
    • United States State Supreme Court of Washington
    • October 7, 2021
    ...decision from this court appears to interpret article I, section 14 as equivalent to the Eighth Amendment. 496 P.3d 299 State v. Feilen , 70 Wash. 65, 67, 126 P. 75 (1912).5 But Gunwall clarifies that courts consider not just the particular constitutional provision but all statutory and cas......
  • State v. Tyler, No. 73564–1–l
    • United States
    • Court of Appeals of Washington
    • August 15, 2016
    ...it is the legislature, and not the trial court, that possesses the constitutional authority to create a crime. See, e.g., State v. Feilen, 70 Wash. 65, 70, 126 P. 75 (1912) (legislature has “ ‘the inherent power to prohibit and punish any act as a crime’ ” (internal quotation marks omitted)......
  • Skinner v. State of Oklahoma Williamson, No. 782
    • United States
    • United States Supreme Court
    • June 1, 1942
    ...provided for is cruel and unusual punishment and violative of the Fourteenth Amendment. See Davis v. Berry, supra. Cf. State v. Feilen, 70 Wash. 65, 126 P. 75, 41 L.R.A.,N.S., 418, Ann.Cas.1914B, 512; Mickle v. Henrichs, D.C., 262 F. 687. We pass those points without intimating an opinion o......
  • State v. Whitfield, No. 32655-8-II.
    • United States
    • Court of Appeals of Washington
    • May 16, 2006
    ..."`[t]he legislature is clothed with power well nigh unlimited to define crimes and fix their punishments.'" State v. Feilen, 70 Wash. 65, 70, 126 P. 75 (1912) (quoting State v. Woodward, 68 W.Va. 66, 68, 69 S.E. 385 (1910)). "The power of the legislature to define crimes and ......
  • Request a trial to view additional results

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