State v. Mulcare

• Decision Date: 01 April 1937
• Docket Number: 26329.
• Parties: STATE v. MULCARE et al.
• Court: Washington Supreme Court

66 P.2d 360

189 Wash. 625

STATE v. MULCARE et al.

No. 26329.

Supreme Court of Washington

April 1, 1937

Department 1.

Appeal from Superior Court, King County; Clay Allen, Judge.

John C Mulcare and Harvey Eagan were convicted of attempted robbery and they appeal.

Judgment affirmed.

Philip Tworoger and Andrew L. Ulvestad, both of Seattle, for appellants.

B. Gray Warner, Pros. Atty., and Grant G. Calhoun, Deputy Pros. Atty., both of Seattle (Harry Bowen, of Seattle, of counsel) for respondent.

STEINERT, Chief Justice.

The appellants herein were charged, as defendants, by information, with the crime of attempted robbery committed on April 13, 1936, and, upon a trial by jury, were found guilty. A motion in arrest of judgment having been denied, judgment was entered sentencing each of the defendants to the penitentiary for a term of not more than twenty years.

Upon this appeal there are two assignments of error. The first assignment challenges the constitutionality of chapter 114 Laws of 1935, page 308, Rem.Rev.Stat. (Supp.), § 10249-1 et seq., which became effective prior to the commission of the offense by appellants, and under the provisions of which they were sentenced.

The act, according to its title, relates to provisions for the adequate punishment of persons convicted of certain felonies, their rehabilitation while in confinement, and the necessary supervision after their release, to prevent recidivism.

Section 1 of the act, Rem.Rev.Stat. (Supp.), § 10249-1, creates a board of prison, terms, and paroles to administer the provisions of the act, with functions, powers, and duties as set forth in subsequent sections.

Section 2 of the act, Rem.Rev.Stat. (Supp.), § 10249-2, provides that, with respect to certain felonies, the court shall sentence the convicted person to the penitentiary, and shall fix the maximum term only, such maximum term to be the maximum provided by law for the particular crime, or, if no maximum term be provided by law, then to be fixed by the court, which maximum term may be for any number of years up to and including life imprisonment, but not less than twenty years.

It will be observed that the statute does not empower the court to fix minimum terms. Instead, the act subsequently provides that, after the admission of the convicted person to the penitentiary, the board shall obtain from the sentencing judge and the prosecuting attorney statements of all the facts concerning the particular crime committed and any other information of which they may be possessed relative to such convicted person; further, that it shall be the duty of the sentencing judge and prosecuting attorney not only to furnish such information, but also to indicate to the board, for its guidance, what, in their judgment, should be the duration of such convicted person's imprisonment. The act further provides that, within six months after the admission of the convicted person to the penitentiary, the board shall fix the duration of his or her confinement, the term in no event to exceed the maximum provided by law or fixed by the court. The act also imposes upon the board, in certain cases not pertinent to our present consideration, other specific limitations in fixing the duration of confinement.

Rem.Rev.Stat. § 2418, passed in 1909, defines the crime of robbery and fixes the punishment for such offense at imprisonment in the penitentiary for not less than five years, but does not prescribe a maximum term. Rem.Rev.Stat. § 2264, also passed in 1909, fixes the penalty for an attempt to commit a crime, other than such as are punishable by death or life imprisonment, at imprisonment for not more than half the longest term or a fine of not more than half the largest sum, or both, permissible upon conviction for commission of the completed offense.

Appellants' contention is that the 1935 act is unconstitutional in that it deprives the court of a part of its judicial powers, contrary to article 4,§ 1, of the Constitution , which vests the judicial power of the state in the courts. The argument is that the fixing of the term of imprisonment is a judicial power which cannot be conferred upon, nor exercised by, an administrative body such as the board of prison, terms, and paroles; further, that the act demotes the judiciary into a mere advisory personality and elevates a lay board to the position of a judicial tribunal.

Acts, generally similar to the 1935 act above mentioned, have been enacted in many states of the Union, and have successfully withstood attacks based upon various grounds including those suggested by the appellants here.

The legislative authority of the state is vested in the Legislature, subject to the initiative and referendum. Constitution, art. 2, § 1, as amended by Amendment 7. Fixing of penalties or punishments for criminal offenses is a legislative function, and the power of the Legislature in that respect is plenary and subject only to constitutional provisions against excessive fines and cruel and inhuman punishment. State v. Duff, 144 Iowa, 142, 122 N.W. 829, 24 L.R.A. (N.S.) 625, 138 Am.St.Rep. 269; Cave v. Haynes (Iowa) 268 N.W. 39; Mutart v. Pratt, 51 Utah, 246, 170 P. 67; 8 R.C.L., page 257, § 264.

It is the function of the judicial branch of the government to determine the guilt of persons charged with crimes and to impose the sentence provided by law for the crime of which a particular individual has been found guilty. But the execution...