State v. Feilen

• Citation: 70 Wash. 65,126 P. 75
• Court: United States State Supreme Court of Washington
• Decision Date: 03 September 1912
• Parties: STATE v. FEILEN.

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.

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.

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., 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 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 the Legislature will not be disturbed by the courts, except in extreme cases. 'It would be an interference with matters left by the Constitution to the legislative department of the government for us to undertake to weigh the propriety of this or that penalty fixed by the Legislature for specific offenses. So long as they do not provide cruel and unusual punishments, such as disgraced the civilization of former ages, and make one shudder with horror to read of them, as drawing, quartering, burning, etc., the Constitution does not put any limit upon legislative discretion.' Whitten v. State, 47 Ga. 297.

On the theory that modern scientific investigation shows that idiocy, insanity, imbecility, and criminality are congenital and hereditary, the Legislatures of California [St. Cal 1909, p. 1093, c. 720], Connecticut [Pub. Laws Conn. 1909, c. 209], Indiana [Laws Ind. 1907, c. 215], Iowa [Laws Iowa 1911, c. 129], New Jersey [Laws N. J. 1911, c. 190], and perhaps other states, in the exercise of the police power, have enacted laws providing for the sterilization of idiots, insane, imbeciles, and habitual criminals. In the enforcement of these statutes vasectomy seems to be a common operation. Dr. Clark Bell, in an article on hereditary criminality and the asexualization of criminals, found at page 134, vol. 27, Medico-Legal Journal, quotes with approval the following language from an article contributed to Pearson's Magazine for November, 1909, by Warren W. Foster, Senior Judge of the Court of General Sessions of the Peace of the county of New York: 'VASECTOMY IS KNOWN TO THE MEDICAL PROFessIon as 'an office operation,' painlessly performed in a few minutes, under an anaesthetic (cocaine), through a skin cut half an inch long, and entailing no wound infection, no confinement to bed. 'It is less serious than the extraction of a tooth,' to quote from Dr. William D. Belfield, of Chicago, one of the pioneers in the movement for the sterilization of criminals by vasectomy, an opinion that finds ample corroboration among practitioners. * * * There appears to be a wonderful unanimity of favoring opinion as to the advisability of the sterilization of criminals and the prevention of their further propagation. The Journal of the American Medical Association recommends it, as does the Chicago Physicians' Club, the Southern District Medical Society, and the Chicago Society of Social Hygiene. The Chicago Evening Post, speaking of the Indiana law,...