State v. Furth

• Decision Date: 18 December 1914
• Docket Number: 11471.
• Citation: 82 Wash. 665,144 P. 907
• Parties: STATE v. FURTH.
• Court: Washington Supreme Court

144 P. 907

82 Wash. 665

STATE v. FURTH.

No. 11471.

Supreme Court of Washington

December 18, 1914

En Ban. Appeal from Superior Court, Whatcom County; Ed. E. Hardin Judge.

Jacob Furth was convicted of an offense, and he appeals. Reversed with instructions to dismiss.

Hughes McMicken, Dovell & Ramsey, of Seattle, for appellant.

Frank W. Bixby, of Bellingham, and J. L. Corrigan, of Seattle, for the State.

GOSE J.

The defendant Furth was tried and sentenced upon an information charging that one Schricker received a deposit in a private bank in which he (Schricker) was one of the owners, knowing that the bank and the individual members thereof were unsafe and in an insolvent condition, and that Furth and his codefendants, knowing the insolvent condition of the bank and the individual members composing it, aided, abetted, counseled, encouraged, and induced Schricker to accept and receive the deposit. A judgment was entered upon the verdict imposing a fine of $10,000 and costs, and directing that the defendant Furth 'stand committed to the custody of the sheriff until such fine and costs are paid, as provided by law.' The defendant Furth, who was tried separately, has appealed. While the appeal was pending and awaiting decision before this court, the appellant died. His death has been suggested to this court. Counsel for the state and counsel for the sole executrix of the last will and testament of the deceased have requested the court to decide the case upon the merits.

The courts of the country, both state and federal, have, with marked unanimity, held that the death of the defendant in a criminal case pending appeal, in the absence of a statute expressing the contrary, permanently abates the action and all proceedings under the judgment. They make no distinction between a sentence of imprisonment and the imposition of a fine. The underlying principle is that the object of all criminal punishment is to punish the one who committed the crime or offense, and not to punish those upon whom his estate is cast by operation of law or otherwise. Herrington v. State, 53 Ga. 552; U.S. v. Pomeroy (C. C.) 152 F. 279, which was reversed in U.S. v. New York, etc., 164 F. 324, 90 C. C. A. 256, upon the sole ground that the trial court had lost jurisdiction: U.S. v. Mitchell (C. C.) 163 F. 1014; U.S. v. Dunne, 173 F. 254, 97 C. C. A. 420, 19 Ann. Cas. 1145; O'Sullivan v. People, 144 Ill. 604, 32 N.E. 192, 20 L. R. A. 143; Boyd v. State, 3 Okl. Cr. 684, 108 P. 431; State v. Woods, 56 Mo.App. 55; Overland v. People, 32 Colo. 263, 75 P. 924, 105 Am. St. Rep. 74; People v. St. Maurice, 166 Cal. 201, 135 P. 952; Town of Carrollton v. Rhomberg, 78 Mo. 547; March v. State, 5 Tex. App. 450; Burks v. State (Tex. Cr. App.) 105 S.W. 496; Mickle v. State, 5 Okl. Cr. 707, 115 P. 628; Williams v. State (Okl. Cr. App.) 115 P. 379; Hardin v. State (Tex. Cr. App.) 36 S.W. 82; Pastiofsky v. State (Tex. Cr. App.) 28 S.W. 947; Hudson v. State (Tex. Cr. App.) 70 S.W. 82; List v. Pennsylvania, 131 U.S. 396, 9 S.Ct. 794, 33 L.Ed. 222; Menken v. Atlanta, 131 U.S. 405, 9 S.Ct. 794, 33 L.Ed. 221; People v. Pouchot, 174 Ill.App. 1.

In the Pomeroy Case, Pomeroy was indicted and convicted of the offense of giving rebates in violation of the federal statute. He was sentenced to pay a fine of $6,000, and judgment against him for that amount was entered. He afterwards died. His executor moved for an order declaring that the judgment had abated. The district attorney argued that the proceedings, if an appeal was pending, would abate, leaving the judgment appealed from in full force. He further argued that the judgment established the liability as a debt. In addressing itself to these contentions, the court said:

'Upon the whole there is in my opinion no satisfactory authority controlling this case. It must therefore be decided on fundamental principles. In my opinion the fundamental principle applicable to this case is that the object of criminal punishment is to punish the criminal, and not to punish his family. When A. recovers a judgment against B. for a tort, the recovery is undoubtedly based on the defendant's misconduct; but the fundamental principle upon which the action is maintained is the idea of compensating the injured party; but, when a court imposes a fine for the commission of a crime, there is no idea of compensation involved. In this case the defendant was fined $6,000. That money was not awarded as compensation to the United States. No harm had been done to the United States. It was imposed as a punishment of the defendant for his offense. If, while he lived, it had been collected, he would have been punished by the deprivation of that amount from his estate; but, upon his death, there is no justice in punishing his family for his offense. It may be said, of course, that there is very little difference between the loss which his family would have sustained if the money had been collected before his death, and the loss which it will now sustain if it is collected from his estate. But if the money had been collected before his death, he would have been punished. If it is collected now, his family will be punished, and he will not be punished. In my opinion, therefore, this prosecution should be deemed ended and this judgment abated by the defendant's death.' In the Mitchell Case the defendant had been sentenced to a term of imprisonment and to pay a fine of a thousand dollars for violation of a federal statute. The cause was taken to the Supreme Court on a writ of error. While the writ was pending the defendant died. Thereupon, upon the suggestion of counsel for the defendant, the court dismissed the writ without further hearing or proceedings. Subsequently, the government, through the district attorney, presented a claim to the administrator of the estate of the deceased for the amount of the fine, and the administrator thereupon appeared in the court of original jurisdiction, by motion, to have the entire proceeding against the deceased abated and the fine canceled. In holding that the entire cause was abated, and that the fine imposed was not a subsisting claim or demand against the estate of the deceased, the court said:

'It is a thing self-evident, therefore, that the death of a person upon whom such a judgment is imposed would put an end to an infliction or enforcement of the punishment. A fine being a pecuniary punishment imposed upon the person, it would seem that a like result would follow. If the accused should die before the punishment was in reality enforced or inflicted, he could not be pecuniarily mulcted or punished in person after he had ceased to exist. In passing judgment, whether of imprisonment or fine, it is the purpose of the court and the law that the accused be personally punished for the amendment of his life and of his deportment in the future, and to deter others from committing like offenses. If it be a personal infliction at the time of passing judgment, when, after judgment, does it cease to be personal? Does it cease at the time of docketing, or at the time of the issuance and service of the execution, or of making the writ, or at any time? The answer is plainly that by no act in the enforcement of the judgment does it lose its original character as a personal infliction of punishment. If the fine is made out of his property, then as to that he is punished; but, if made out of the property that has descended to his heirs, or devised to his legatees, then it would seem he is not punished, for his day of temporal punishment has passed.'

This case was affirmed on appeal in the case of U.S. v. Dunne, where the court said:

'Upon the face of the record, the action arises ex delicto; and all private criminal injuries or wrongs, as well as all public crimes, are buried with the offender.'

In O'Sullivan v. People, after observing that the only right of review given to the representatives of a deceased person at common law in a criminal case was that of an attainder for treason or felony, the court said:

'A judgment cannot be enforced when the only subject-matter upon which it can operate has ceased to exist. When the defendant, ordered to be punished, is dead, the execution of that order is absolutely arrested; for the future it is as entirely a nullity as any subsequent judgment arresting it can possibly make it to be.'

In Boyd v. State the defendant was convicted for a violation of the prohibition law, and sentenced to pay a fine of $200 and costs, and to be confined for 30 days in the county jail from which judgment he appealed. While the case was pending upon appeal, he died. In holding that the proceedings abated, the court said:

'His death having been suggested, the proceedings abate, and no decision upon the merits of the appeal will be rendered. A civil action does not abate by the death of a party if the cause of action survive or continue, but in a criminal action the sole purpose of the proceedings is to enforce the criminal law and punish the person found guilty of a violation thereof. The personal representative of the deceased is not responsible for the alleged violation of the law by the defendant during his lifetime, and cannot be required to satisfy the judgment rendered against him. It is only the person adjudged guilty who can be punished, and a judgment cannot be enforced when the only subject-matter upon which it can operate has ceased to exist.'

In the Pomeroy Case reference was made to a federal statute which provides:

'In all criminal or penal causes in which judgment or sentence has been or shall be rendered, imposing the payment of a fine or penalty, whether alone or with any other kind of punishment, the said judgment, so far as the fine or penalty is concerned, may be enforced by execution against

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