State v. Hanlen

Decision Date29 June 1937
Docket Number26615.
Citation190 Wash. 563,69 P.2d 806
PartiesSTATE v. HANLEN.
CourtWashington Supreme Court

As Amended July 24, 1937.

Department 1.

Appeal from Superior Court, King County; Calvin S. Hall, Judge.

Harry A. Hanlen was convicted of grand larceny, and he appeals.

Judgment and sentence set aside, and cause remanded, with directions.

Philip Tworoger, of Seattle, for appellant.

B. Gray Warner, John M. Schermer, and Harry A. Bowen, all of Seattle for the State.

BLAKE Justice.

The defendant was charged with the crime of grand larceny by information alleging the offense to have been committed the 13th day of May, 1935. On December 2, 1935, he pleaded guilty to the charge. He made a motion in arrest of judgment on the ground that, since Rem.Rev.Stat. § 2281 (Laws of 1909, c. 249, p. 897, § 29), providing for indeterminate sentences, was specifically repealed by section 9, chapter 114, p. 319, Laws of 1935, and since section 2 of the latter act (page 309) is ex post facto with respect to the crime charged in the information, there is no valid subsisting law under which judgment and sentence can be entered against him. Overruling the motion in arrest of judgment, the court entered judgment sentencing the defendant to a 'term of not more than fifteen years' in the state penitentiary. Defendant appeals, assigning error in the denial of his motion in arrest of judgment.

Under the facts of this case, it is apparent that section 2, c 114, p. 309, Laws of 1935, is ex post facto, and that the penalty provided therein cannot be imposed upon defendant. Lindsey v. State of Washington, 57 S.Ct. 797, 81 L.Ed. 1182. As we have observed, the court fixed the maximum term at fifteen years. This judgment and sentence conforms explicitly with the terms of Rem.Rev.Stat. § 2605 (Laws 1909 c. 249, p. 998, § 353). That section defines 'grand larceny,' and fixes the penalty 'by imprisonment in the state penitentiary for not more than fifteen years.' The judgment and sentence did not conform, however, with the terms of Rem.Rev.Stat. § 2281, which provides that the court shall fix the minimum as well as the maximum of the term to be served.

The question now to be determined is what effect the specific repeal of Rem.Rev.Stat. § 2281, contained in chapter 114, p 308, Laws of 1935, has with respect to crimes of grand larceny committed prior to the effective date of the latter act. The answer is fund in Rem.Rev.Stat. § 2006, which provides: 'No offense committed and no penalty or forfeiture incurred previous to the time when any statutory provision shall be repealed, whether such repeal be express or implied, shall be affected by such repeal, unless a contrary intention is expressly declared in the repealing act, and no prosecution for any offense, or for the recovery of any penalty or forfeiture, pending at the time any statutory provision shall be repealed, whether such repeal be express or implied, shall be affected by such repeal, but the same shall proceed in all respects, as if such provision had not been repealed, unless a contrary intention is expressly declared in the repealing act. Whenever any criminal or penal statute shall be amended or repealed, all...

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15 cases
  • State v. Lindsey, 26004.
    • United States
    • Washington Supreme Court
    • 18 Marzo 1938
    ... ... §§ 2281 and 2605, being the sections in ... effect at the time the appellants' offenses were ... committed. This procedure was proper notwithstanding the ... repeal of section 2281, by reason of the saving provisions ... contained in Rem.Rev.Stat. § 2006. State v. Hanlen, ... 190 Wash. 563, 69 P.2d 806; State v. Hanlen, Wash., ... 76 P.2d 316 ... The ... only serious question open on the present appeal is whether ... the appellants could have been legally sentenced by a judge ... other than the one who presided at their ... ...
  • In re Rice
    • United States
    • Washington Supreme Court
    • 15 Noviembre 1945
    ...statute shall be so construed as to save all criminal and penal proceedings. State v. Newcomb, 58 Wash. 414, 109 P. 355; State v. Hanlen, 190 Wash. 563, 69 P.2d 806; State v. Mehlhorn, 195 Wash. 690, 82 P.2d Appellant was therefore subject to sentence under Rem.Rev.Stat. § 2436, taken in co......
  • State v. Hanlen
    • United States
    • Washington Supreme Court
    • 16 Febrero 1938
    ...of grand larceny. Since this case has already been Before this court, it is unnecessary to recapitulate the facts herein. State v. Hanlen, 190 Wash. 563, 69 P.2d 806. It was held since section 2, chapter 114, page 309, Laws of 1935, is ex post facto with respect to this case, that the penal......
  • Dooly v. Mahoney
    • United States
    • U.S. District Court — District of Washington
    • 22 Enero 1942
    ...upon him of a corrected sentence in conformity with the decision of the Supreme Court of the State of Washington in State v. Hanlen, supra 190 Wash. 563, 69 P.2d 806. If the petitioner is so returned and resentenced and a suitable showing to that effect is made by the respondent, the writ o......
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