State v. Kanistanaux

• Decision Date: 26 May 1966
• Docket Number: No. 38460,38460
• Citation: 414 P.2d 784,68 Wn.2d 652
• Court: Washington Supreme Court
• Parties: STATE of Washington, Appellant, v. McCoy KANISTANAUX and Venita Kanistanaux, Respondents.

Page 652

68 Wn.2d 652

414 P.2d 784

STATE of Washington, Appellant, v. McCoy KANISTANAUX and Venita Kanistanaux, Respondents.

No. 38460.

Supreme Court of Washington, Department 1.

May 26, 1966.

Charles O. Carroll, Pros. Atty., David W. Soukup, Deputy Pros. Atty., Seattle, for appellant.

August F. Hahn, Alva C. Long, Auburn, for respondents.

Paul Klasen, Washington State Pros. Attys'. Assn., Ephrata, Michael H. Rosen, Seattle, American Civil Liberties Union, amici curiae.

ROSELLINI, Chief Justice.

The defendants were charged by information in superior court with the crime of manslaughter, it being alleged that they caused the death of their 4-year-old son by wilfully omitting to furnish him with necessary medical attendance.

The defendants moved for dismissal on the ground that the information was defective, not having been found before a grand jury. In granting this motion, the trial court held that the fifth and fourteenth amendments to the United States Constitution guarantee to a defendant charged with an infamous crime the right to be either indicted by a grand jury or given a preliminary hearing to determine probable cause. The state has appealed.

It is conceded by the state that manslaughter is an infamous crime, being a felony and punishable by confinement in the state penitentiary. However, the state calls our attention to the fact that the United States Supreme Court has held that the Fifth Amendment, insofar as it requires a grand jury in such cases, does not apply to the states. The leading case is Hurtado v. People of State of California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232, decided in 1884.

The trial court recognized that this case has not been overruled and has in fact been followed. Among the cases citing and applying its rule are McNulty v. People of State of California, 149 U.S. 645, 13 S.Ct. 959, 37 L.Ed. 882; Hodgson v. State of Vermont, 168 U.S. 262, 18 S.Ct. 42 L.Ed. 461; Bolln v. State of Nebraska, 176 U.S. 83, 20 S.Ct. 287, 44 L.Ed. 382; Maxwell v. Dow, 176 U.S. 581, 20 S.Ct. 448, 44 L.Ed. 597; Davis v. Burke, 179 U.S. 399, 21 S.Ct. 210, 45 L.Ed. 249: Dowdell v. United States, 221 U.S. 325, 31 S.Ct. 590, 55 L.Ed. 753; Lem Woon v. State of Oregon, 229 U.S. 586, 33 S.Ct. 783, 57 L.Ed. 1340. In the last cited case, the United States Supreme Court held that the due process of law clause of the Fourteenth Amendment does not require the states to adopt the institution and procedure of a grand jury; nor does it require an examination, or the opportunity for one, prior to a formal accusation by the district attorney by information.

However, the trial court appears to have been of the opinion that the Hurtado decision, supra, was impliedly overruled in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Gideon v. Wainright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Estes v. State of Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543.

We cannot subscribe to this view. Mapp v. Ohio, supra, was concerned with the question whether evidence obtained through illegal search and seizure was admissible in a criminal trial in a state court. The court held that the due process clause of the Fourteenth Amendment required that the Fourth and Fifth Amendment guarantees of privacy be applied to state action and further held that evidence obtained in violation of these provisions was inadmissible in a trial of the petitioner for illegal possession of the materials confiscated. Hurtado v. People of State of California, supra, was not mentioned, and the court did not hold that all of the provisions of the Fifth Amendment apply to the states.

Neither was there any mention of the Hurtado case, supra, in Estes v. State of Texas, supra. The court held there that due process forbade the televising of the defendant's trial on a charge of swindling.

In Gideon v. Wainright, supra, the United States Supreme Court held that the Sixth Amendment guarantee of the right to counsel, which is obligatory upon the states by virtue of the Fourteenth Amendment, requires that counsel be appointed for an indigent in noncapital as well as capital cases. In reaching this decision, the court cited Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, which was decided in 1943, and which had held that the right to counsel is a fundamental right, inherent in due process, and, therefore, was applicable in a prosecution by a state under the due process clause of the Fourteenth Amendment.

The United States Supreme Court also noted in its opinion in Gideon v. Wainright, supra, that the court had previously held, in Powell v. State of Alabama, supra, that the rationale of Hurtado v. People of State of California, supra, is inapplicable where the right involved is of such a character that it cannot be denied without violating those 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.' The court in the Powell case, supra, had held that the right to counsel in a capital case is such a right and is, therefore, protected against state action.

The fifth amendment to the United States Constitution reads:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The court in the Hurtado case, supra, had held that a grand jury indictment was not a necessary element of due process, being historically intended as a protection against arbitrary and capricious prosecutions by the crown, rather than such prosecutions by the people (acting through their elected officials). The court had buttressed this conclusion with a resort to the canon of construction that a court may not assume, without clear reason to the contrary, that language in a formal and solemn instrument such as the constitution is superfluous. Thus, it said, if the grand jury indictment were a necessary part of 'due process of law,' it would not have been thought necessary to mention it apart from the due process clause.

This reasoning was rejected by the court in Powell v. State of Alabama, supra, as we have heretofore observed, insofar as it implied that no right separately stated in the 'bill of rights' could be considered an element of due process. If Hurtado v. People of State of California stood alone, the court in Powell v. State of Alabama, supra, said, its sweeping language would require holding that the right to counsel was not a part of due process, but other cases in the intervening years had recognized that a right, although specifically set forth in the constitution, may, nevertheless, be included within the concept of due process and, therefore, be protected under the due process clause of the Fourteenth Amendment. These included Chicago, Burlington & Quincy Ry. Co. v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979, (private property not to be taken for public use without just compensation); Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138; Stromberg v. State of California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117; Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357, (the latter three concerned with freedom of speech and of the press).

It is significant here, however, that the court did not see fit to overrule Hurtado v. People of State of California, 110 U.S. 516, 4 S.Ct. 111, 292, 28 L.Ed. 232, either in Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, or in Gideon v. Wainright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. The fact that it rejected its reasoning as applied to fundamental rights, without overruling it, can only be consistent with a conclusion that the court had correctly held that due process does not require a grand jury indictment because the denial of it does not violate those 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.'

The court in the Hurtado case, supra, considered at length those abuses of the king's prerogatives which had led the English lords to demand for their Magna Charta the protection embodied in the phrase, 'but by the indictment or presentment of good and lawful men.' It came to the conclusion that those abuses were not to be expected from a prosecutor, an elected representative of the people charged with the duty and responsibility of prosecuting only where probable cause is shown. Justice Harlan, dissenting, was of the opinion that the framers feared the prosecutor, just as their ancestors had feared the king, and that this provision was meant to protect against a very real danger of harsh and arbitrary action.

That case was decided in 1884. Eighty-two years later we are asked to anticipate that the United States Supreme...