State v. Pavelich

• Decision Date: 09 August 1929
• Docket Number: 21235.
• Citation: 153 Wash. 379,279 P. 1102
• Parties: STATE v. PAVELICH et al.
• Court: Washington Supreme Court

279 P. 1102

153 Wash. 379

STATE v. PAVELICH et al.

No. 21235.

Supreme Court of Washington, En Banc.

August 9, 1929

Appeal from Superior Court, Spokane County; R. M. Webster, Judge.

John Pavelich and others were convicted of being jointists, and they appeal. Affirmed.

Beals French, Main, and Fullerton, JJ., dissenting.

Turner, Nuzum & Nuzum and Edward M. Connelly, all of Spokane, for appellants.

Chas W. Greenough and Frank Funkhouser, both of Spokane, for the State.

HOLCOMB J.

These appellants were convicted of the crime of being jointists of an offense alleged to have been committed at a different time, but at the same place as that alleged and involved in State v. Pavelich et al. (Wash.) 273 P. 182.

Unsuccessful motions were made by appellants Pavelich and Mason in arrest of judgment, and by all of the appellants for a new trial.

The first error urged as a ground for reversal is that the court erred in failing and refusing to instruct the jury that no inference of guilt could be drawn from the failure of defendants to testify in the case. In this case, unlike the preceding case, State v. Pavelich et al., supra, involving this question no request was made for any such instruction. Appellants merely excepted to the failure of the court of its own motion to give such an instruction. This was not sufficient to save such error. State v Ross, 85 Wash. 218, 147 P. 1149; State v. Walker, 104 Wash. 472, 177 P. 315; State v. Thorp, 133 Wash. 61, 233 P. 297; State v. Pavelich, supra.

Much learned argument is devoted by appellants to the rule-making power of this court, by virtue of Laws of 1925, Ex. Sess. p. 187, Rem. 1927 Supp. § 13-1 et seq., which unfortunately has been decided against them as to the constitutionality thereof and the power of this court to abrogate laws relating to practice and procedure in conflict therewith by our decision in State ex rel. Foster-Wyman Lumber Co. et al. v. Superior Court, 148 Wash. 1, 267 P. 770.

While the argument of appellants is arresting in its rare ability, profundity of thought, and learning, and very persuasive as to some of the points raised, since the court has deliberately decided respecting the fundamental phase of the question to the contrary, it is profitless to pursue such discussion further.

Appellants further contend that the particular rule in question, subdivision 1, rule 9, 140 Wash. xli, invades the realm of substantive law. Texts and authorities are cited and quoted defining what constitutes practice and procedure.

These are to the general effect that what constitutes practice and procedure in the law is the mode of proceeding by which a legal right is enforced, 'that which regulates the formal steps in an action or other judicial proceeding; the course of procedure in courts; the form, manner and order in which proceedings have been, and are accustomed to be had; the form, manner and order of carrying on and conducting suits or prosecutions in the courts through their various stages according to the principles of law and the rules laid down by the respective courts.' 31 Cyc. Law & Procedure, p. 1153; Id. 32, § 405; Rapalje & Lawrence's Law Dictionary; Anderson's Law Dictionary; Bouvier's Law Dictionary. Procedure is a broader term than practice. It includes in its meaning whatever is embraced by the three technical terms, 'pleading,' 'evidence,' and 'practice.' Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506 (citing Bishop, Criminal Procedure).

Rules of evidence constitute substantive law, and cannot be governed by rules of court. Doe ex dem. Patterson v. Winn, 5 Pet. 242, 8 L.Ed. 108.

A substantive right of a litigant existing under the law cannot be abrogated by courts under the guise of rules of court; citing Laurel Canning Co. v. Baltimore & Ohio R. Co., 115 Md. 638, 81 A. 126; State v. Gideon, 119 Mo. 94, 24 S.W. 748, 41 Am. St. Rep. 634; People v. Metropolitan Surety Co., 164 Cal. 174, 128 P. 324, Ann. Cas. 1914B, 1181; Chicago City Ry. Co. v. Sandusky, 198 Ill. 400, 64 N.E. 991; Territory ex rel. Kelly v. Stewart, 1 Wash. 98, 23 P. 405, 8 L. R. A. 106; State v. Eyres Storage & Distributing Co., 115 Wash. 682, 198 P. 390; Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377; Field v. Clark, 143 U.S. 649, 12 S.Ct. 495, 36 L.Ed. 294.

Nudd v. Burrows, Assignee, 91 U.S. 426, 23 L.Ed. 286, is also cited to the effect that the form or substance of a charge to a jury is not practice within the conformity act of Congress, as fitting this case with precision.

All of the foregoing propositions are sound, and we are not disposed to disagree with any of them.

Rules of evidence are substantive law, found in the common law chiefly, and growing out of the reasoning, experience, and common sense of lawyers and courts.

Generally, the form and substance of instructions of courts to juries comprise the essential rights of litigants before the court, and consist of substantive law. The state practice relative to the manner and form of instructing juries would not control, in the absence of provisions for conforming thereto adopted by the federal procedure acts.

Certainly a substantive right of a litigant existing under a Constitution or statute cannot be taken away by a mere rule of court standing alone.

Nor do we believe that the Legislature can delegate to the courts, or the courts assume the power, to abrogate substantive law. We have so held, in effect, in the Pavelich Case, supra.

But practice is 'the mode of procedure by which a legal right is enforced'; 'the course of procedure in courts.' It 'regulates the course of procedure in courts.' Undoubtedly it originated in courts and developed in the ancient courts of common law and equity jurisprudence. Because of great evils developing in the courts both in nonaction and corruption, the lawmaking bodies interfered for the regulation of practice and procedure, in which the courts, because of their disrepute, acquiesced. Since that period, both branches have exercised the rule-making power--the courts to a more limited extent than the Legislatures.

While procedure is, to some extent, broader than practice, it seldom includes substantive rights. When it does, it is by reason of some constitutional or fundamental right. In such case no rule of court can abolish it. Such, as we view it, is not the case here. While practice and procedure are not always identical, they are always correlative. One cannot exist without the other.

The old statute, Rem. Comp. Stat. § 2148, was a mixture. It comprised some constitutional rights (State v. Pavelich, supra), some substantive rights, and others manifestly within the category procedure and practice.

If that portion abrogated by rule 9 belongs to the last category, and the court has the power, as we held in the Foster-Wyman Case, supra, to alter or abolish such provisions, then, manifestly, it is valid.

Although the distinction between procedure and substantive law is not always well understood, and is sometimes vague and indistinct, substantive law is well defined in Mix v. Board of Commissioners, 18 Idaho, 695, 112 P. 215, 32 L. R. A. (N. S.) 534, as that part of the law which creates, defines, and regulates rights as opposed to adjective or remedial law, which prescribes the method of enforcing rights, or of obtaining redress for their invasion. It is difficult, therefore, to draw the line in any particular case, beyond which legislative power, over remedy and procedure, cannot pass without touching upon the substantial rights of the parties affected, as it is impossible to fix that boundary by any general condition.

In Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 69, 70 L.Ed. 216, among other things, that court said:

'Expressions are to be found in earlier judicial opinions to the effect that the constitutional limitation may be transgressed by alterations in the rules of evidence or procedure [citing cases]. And there may be procedural changes which operate to deny to the accused a defense available under the laws in force at the time of the commission of his offense, or which otherwise affect him in such a harsh and arbitrary manner as to fall within the constitutional prohibition [citing cases]. But it is now well settled that statutory changes in the mode of trial or the rules of evidence, which do not deprive the accused of a defense and which operate only in a limited and unsubstantial manner to his disadvantage, are not prohibited.'

In another case by that court, United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 483; 55 L.Ed. 563, among other things, that court said:

'It must be admitted that it is difficult to define the line which separates legislative power to make laws, from administrative authority to make regulations. * * * 'It will not be contended that Congress can delegate to the courts, or to any other tribunals, powers which are strictly and exclusively legislative. But Congress may certainly delegate to others, powers which the legislature may rightfully exercise itself.''

In Hewitt Logging Co. v. Northern Pacific R. Co., 97 Wash. 597, 166 P. 1153, 1154, 3 A. L. R. 198, this court said:

'To define procedure, to make a condition precedent, and to fix a limitation does not destory the force of the constitution. On the contrary, a law so providing makes it efficient, certain, and uniform in its operation. The substantive right remains; that is all the citizen can insist upon, for it is held, under authority without limit, that no litigant has a vested right in procedure, so long as his right of action is not abolished.'

So in this case, no substantive right of appellants has been abolished. They still have the right to a fair and impartial trial by a fair and impartial court before a fair and impartial jury. T...