State v. Haga

• Citation: 504 P.2d 787,81 Wn.2d 704
• Decision Date: 21 December 1972
• Docket Number: No. 42507,42507
• Parties: STATE of Washington, Petitioner, v. Eric L. HAGA, Respondent.
• Court: Washington Supreme Court

Page 704

81 Wn.2d 704

504 P.2d 787

STATE of Washington, Petitioner, v. Eric L. HAGA, Respondent.

No. 42507.

Supreme Court of Washington, En Banc.

Dec. 21, 1972.

Christoper T. Bayley, Pros. Atty., James E. Warme, Deputy Pros. Atty., Seattle, for petitioner.

Barokas, Martin & Richey, Jack A. Richey, Seattle, for respondent.

HUNTER, Associate Justice.

This is a review by certiorari of an order of the Superior Court for King County allowing the defendant (respondent), Eric L. Haga, to post bail pending appeal of his conviction for first-degree murder.

The facts upon which this review is predicated are not in dispute.

On December 23, 1971, the defendant was found guilty of first-degree murder on two counts, for the slaying of his wife and 7-month-old daughter. The jury did not recommend the death penalty. Thereafter, the defendant was sentenced to life imprisonment on both counts, the terms to run concurrently.

A writ of habeas corpus, wherein the defendant petitioned for the setting of bail pending his appeal, was denied by the Court of Appeals, Division I, on June 5, 1972. Subsequently, the case of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726 33 L.Ed.2d 346 (1972), was decided by the United States Supreme Court, the effect of which abolished the death penalty under the existing statutes in this state. See State v. Baker, Wash., 501 P.2d 284 (1972). Application was thereafter made to the Superior Court for the fixing of bail, apparently under the theory that he was entitled to bail as a matter of right in view of the Furman case. The Superior Court, on July 28, 1972, entered an order fixing bail for the defendant in the amount of $35,000.

The petitioner, the State of Washington, seeks review of this order by certiorari, which this Court granted.

The state contends the abolishment of the death penalty in no way changes the nature of the crime or seriousness of the offense for which the death penalty could formerly be imposed, and that the Furman case has in no manner affected the intention of the legislature in limiting the right to bail in crimes formerly categorized as capital offenses. A consideration of this contention requires an analysis of our constitutional and statutory provisions limiting the right to bail in this category of cases. Article 1, section 20 of our constitution provides:

All persons charged with crime shall be bailable by sufficient sureties, except for capital offenses when the proof is evident, or the presumption great.

It is to be noted that the limitation on the right to bail under this section of the constitution does not apply to cases on appeal. We stated In re Berry, 198 Wash. 317, 320, 88 P.2d 427, 429 (1939):

We are in accord with that view, and are of the opinion that the constitution neither confers the right to bail, nor prohibits its allowance, pending an appeal from conviction.

Our statute, RCW 10.19.010, governing the right to bail prior to trial, provides:

Every person charged with an offense, except that of murder in the first degree where the proof is evident or the presumption great, may be bailed by sufficient sureties The right to bail pending appeal is governed by RCW 10.73.040, which provides:

In all criminal actions, except capital cases in which the proof of guilt is clear or the presumption great, upon an appeal being taken from a judgment of conviction, the court in which the judgment was rendered, or a judge thereof, must, by an order entered in the journal or filed with the clerk, fix and determine the amount of bail to be required of the appellant . . .

Since the defendant was granted bail after conviction pending his appeal, only the latter statute is pertinent to the disposition of this appeal.

The sole question in this case is whether the legislature intended a limitation on a defendant's right to bail, upon his conviction of first-degree murder, by reason of the nature of the crime and seriousness of the offense for which he has been convicted, or by reason of it being a capital case in which the death penalty could be inflicted.

The facts in the Berry case were similar to the instant case. There the defendant was convicted of kidnapping in the first degree which was in the category of a capital offense in that the death penalty could be imposed. The jury, upon conviction of the defendant, however, did not impose the death penalty and instead recommended a life sentence. The defendant contended that since the jury had removed the death penalty from the case, it no longer was a 'capital case' and that he was entitled to bail as a matter of right under RCW 10.73.040.

Mr. Justice Steinert, after an exhaustive review of authorities in other jurisdictions on this question, stated in Berry on page 329, 88 P.2d on page 432:

Considering the cases from other jurisdictions, upon the question involved, we will not undertake to say where the weight of authority lies. It may be said to be divided fairly evenly. We are, therefore, left free to decide the question as one of first impression, without doing violence to any well-settled principle.

We thereupon held that the nature and degree of the crime was the same, although the death penalty had been removed by the jury, and that it was still a capital case coming within the limitations of RCW 10.73.040, in granting bail on appeal. We stated:

Since a capital offense is one in which the death penalty May be enforced, regardless of whether it finally is or not, A capital case does not lose its character merely from the fact that the jury did not inflict the penalty that it might have inflicted within the...