State v. Nass
| Decision Date | 10 July 1969 |
| Docket Number | No. 40209,40209 |
| Citation | 456 P.2d 347,76 Wn.2d 368 |
| Court | Washington Supreme Court |
| Parties | The STATE of Washington, Respondent, v. David S. NASS, Appellant. |
Samuel J. Allotta, Tacoma, for appellant.
Joseph D. Mladinov, Special Counsel to Pros. Atty., Pierce County, Tacoma for the State of Washington.
The appellant was charged with an unlawful sale of a narcotic drug (marijuana), in violation of RCW 69.33.230, which provides:
It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, or compound any narcotic drug, except as authorized in this chapter.
He was found guilty upon evidence which showed that the sale was made to a man 22 years of age, who was an informer for the Tacoma vice detail; that the informer gave the money to the appellant, who told him in answer to his inquiry that he could procure a 'lid' of marijuana for him for $20; that the appellant took the money to his supplier, one Mike Trenton (whose age is not revealed by that portion of the record which is before us); and that Mike Trenton procured the marijuana and gave it to one Merle McClelland, who delivered it to the informer in the presence of the appellant. McClelland testified that he was 19 years of age at the time of the trial. McClelland was charged as a codefendant with the appellant, but he pleaded guilty and agreed to testify for the state and was given a deferred sentence.
The complaint did not allege that the sale involved a minor. Nevertheless, when the trial court pronounced sentence, it observed that there was evidence that the appellant's codefendant was a minor at the time of the transaction. The court concluded that RCW 69.33.410(4) required that a minimum sentence of 20 years and a maximum sentence of 40 years, plus a fine, should be imposed. The appellant's sole contention is that the court erred in imposing sentence under subdivision (4) of RCW 69.33.410, rather than under subdivision (1) which rovides:
For the first offense the offender shall be guilty of a felony and the court shall impose a fine of not to exceed ten thousand dollars and a sentence of not less than five years or more than twenty years in the state penitentiary, or both such fine and imprisonment;
Subdivision (4) provides:
For any offense under the provisions of this chapter knowingly involving a sale to or other transaction with a minor the offender shall be guilty of a felony and shall be fined not more than fifty thousand dollars and be imprisoned in the state enitentiary not less than twenty or more than forty years.
The theory of the appellant is that, since the increased punishment prescribed by subdivision (4) can be imposed only if the transaction was with a minor and the defendant knew that the person was a minor, those facts must be alleged in the information so that the defendant will have notice and an opportunity to present evidence showing that the party with whom he transacted was not a minor or that he did not know he was a minor.
In a criminal case, the court is only empowered to enter a sentence prescribed for the crime charged. In re Persinger v. Rhay, 52 Wash.2d 762, 329 P.2d 191 (1958); In re Moon v. Cranor, 35 Wash.2d 230, 212 P.2d 775 (1949).
Nowhere in the statute is a transaction with a minor made a substantive crime, therefore we must conclude that the minority of the person with whom a prohibited transaction takes place is only a factor which affects the severity of the punishment. The question remains, must that factor be alleged and proved?
It is the rule that, where a factor aggravates an offense and causes the defendant to be subject to a greater punishment than would otherwise be imposed, the issue of whether that factor is present must be presented to the jury upon proper allegations and a verdict thereon rendered before the court can impose the harsher penalty. State v. Dericho, 107 Wash. 468, 182 P. 597 (1919); State v. Dale, 110 Wash. 181, 188 P. 473 (1920). See also State v. Magnusson, 128 Wash. 541, 223 P. 325 (1924) and State v. Harkness, 1 Wash.2d 530, 96 P.2d 460 (1939).
In State v. Harkness, Supra at 543, 96 P.2d at 466, we cited with approval the case of State v. Smith, 129 Iowa 709, 106 N.W. 187, 4 L.R.A.,N.S., 539 (1906), wherein the court said:
'* * * Every fact essential to the infliction of legal punishment upon a human being must be proven beyond a reasonable doubt. * * *'
And in State v. Dale, Supra, 110 Wash. at 185, 188 P. at 475, we quoted with approval the following language of Judge Gray, speaking in People v. Sickles, 156 N.Y. 541, 51 N.E. 288 (1898):
At common law, it was once thought proper to allege and prove that the defendant had been convicted of prior offenses in the prosecution of the main action, where such prior convictions aggravated the penalty. However, this court has held that an action to determine the status of a habitual criminal (under RCW 9.92.090) may not be joined with the substantive offense but must be brought as a supplemental proceeding. State v. Kirkpatrick, 181 Wash. 313, 43 P.2d 44 (1935). Recalling that, in State ex rel. Edelstein v. Huneke, 140 Wash. 385, 249 P. 784, 250 P. 469 (1926), attention was drawn to the grave danger of prejudice necessarily flowing from a presentation to the jury of the...
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...v. Murdock, 91 Wash.2d 336, 340, 588 P.2d 1143 (1979) (proof of prior convictions in habitual criminal proceedings); State v. Nass, 76 Wash.2d 368, 370, 456 P.2d 347 (1969) (proof of sale of narcotics to a minor to impose a greater Id. at 185-86, 713 P.2d 719. In State v. Tongate, 93 Wash.2......
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