State v. Persinger, No. 36512

• Court: United States State Supreme Court of Washington
• Writing for the Court: STAFFORD; OTT
• Citation: 382 P.2d 497,62 Wn.2d 362
• Parties: The STATE of Washington, Respondent, v. Lee Roy PERSINGER, Appellant.
• Docket Number: No. 36512
• Decision Date: 13 June 1963

Page 362

62 Wn.2d 362 382 P.2d 497 The STATE of Washington, Respondent,
v.
Lee Roy PERSINGER, Appellant. No. 36512. Supreme Court of Washington, Department 2. June 13, 1963.

Page 363

[382 P.2d 499] Howe, Davis, Riese & Jones, Lauren D. Studebaker, Seattle, for appellant.

Charles O. Carroll, Pros. Atty., Robert Thomas, Mary W. Brucker, Deputies, Seattle, for respondent.

STAFFORD, Judge pro. tem. ^*

Arthur St. Peter and Lee Roy Persinger, the appellant, were charged jointly with the crime of robbery. Appellant's motion for a separate trial was denied.

At the time of trial, appellant was required to join with his codefendant in the exercise of all peremptory challenges to the jury. This presented no difficulty during the first five joint challenges. However, on the sixth and last peremptory challenge, Mr. St. Peter refused to join therein and the court denied appellant the opportunity to use it individually. Appellant duly excepted to the court's ruling. July 24, 1961, the jury found appellant guilty of the crime of robbery. His motion for new trial was denied July 28th.

On the 17th of August, while he was awaiting sentence, the state filed a supplemental information accusing him of being an habitual criminal. Arraignment was held August 25th, and at that time the matter was continued seven days for his plea. Counsel was appointed on August 28th and appellant's plea was continued until the 5th of September. On September the 5th, appellant entered a plea of not guilty and on the following day moved to strike the supplemental information. The supplemental information

Page 364

was amended on September 18th, and on the 6th of November appellant unsuccessfully moved to dismiss both the supplemental and amended supplemental informations. The motion was renewed December 14, 1961, and was again denied January 17, 1962. Thereafter, he pleaded not guilty to the charge of being an habitual criminal.

January 19, 1962, a jury found that he was an habitual criminal. His motion for a new trial was denied one week later. He was sentenced to a maximum term of life imprisonment on March 14th.

Appellant assigns as error the court's refusal to dismiss the habitual criminal proceeding. He asserts that the delay in bringing him to trial violated his rights under the tenth amendment to the Washington State Constitution as implemented by RCW 10.46.010.

An habitual criminal charge is not filed for the purpose of prosecuting or punishing an accused for a separate and distinct offense. The proceeding merely enables the court to determine whether there is a sufficient number of prior convictions to require imposition of the sentence provided by law. In re Towne, 14 Wash.2d 633, 129 P.2d 230 (1942); State v. Domanski, 5 Wash.2d 686, 106 P.2d 591 (1940).

One accused of being an habitual criminal is not charged with a criminal offense. State v. Tatum, 161 Wash.Dec. 575, 379 P.2d 372 (1963). The action is not filed until after he has been convicted of a substantive crime for which he is awaiting sentence. RCW 10.46.010 ¹ was designed to protect persons charged with crimes. Thus, it has no application here. State v. Domanski, supra. For the same reason, the right to a speedy trial guaranteed by the tenth amendment of the Washington State Constitution ² does not apply.

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Appellant also assigns as error the denial of his sixth peremptory challenge. He contends[382 P.2d 500] that the joinder of challenges required by RCW 10.49.060 ³ is repugnant to the sixth amendment of the federal constitution, ⁴ the tenth amendment of the state constitution, ⁵ as well as § 1 of the fourteenth amendment of the United States Constitution, ⁶ and Art. 1, § 12 of the Washington State Constitution. ⁷

Appellant does not claim that there is insufficient evidence to support the jury's verdict in either the robbery or habitual criminal actions. He assigns no error to the denial of his motion for separate trial. Finally, he does not strongly contend that he failed to receive a fair trial by an impartial jury as required by the sixth amendment of the federal constitution, or the tenth amendment of the state constitution, although he does raise the issue.

The sixth amendment of the United States Constitution and the tenth amendment of the Washington Constitution provide that one accused of a crime has the right to a trial by an impartial jury. However, neither constitution requires congress or a state legislature to grant peremptory challenges to an accused. Nor does either constitution provide for any particular method of securing to an accused the right to exercise the peremptory challenges which a legislative body grants him. Holmes v. United States, 8 Cir., 134 F.2d 125 (1943); Philbrook v. United States, 8 Cir., 117 F.2d

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632 (1941); 31 Am.Jur., Jury § 230. The matter of peremptory challenges rests entirely with the legislature. People v. Kasis, 145 Misc. 493, 259 N.Y.S. 339 (1931); People v. Doran, 246 N.Y. 409, 159 N.E. 379 (1927); 31 Am.Jur., Jury § 230. It is limited only by the necessity of having an impartial jury. 31 Am.Jur., Jury § 230.

Codefendants are not denied a fair trial by an impartial jury merely because they are required to exerise collectively their peremptory challenges. The law presumes that each juror sworn in a case is impartial and above legal exception, otherwise he would have been challenged for 'cause.' United States v. Marchant & Colson, 12 Wheat. 480, 25 U.S. 480, 6 L.Ed. 700 (1827). A peremptory challenge is not aimed at the disqualification of a juror. It is exercised upon qualified jurors who have not been excused for 'cause.' People v. Roxborough, 307 Mich. 575, 12 N.W.2d 466 (1943); Hall v. United States, 83 U.S.App. D.C. 166, 168 F.2d 161, 4 A.L.R.2d 1193 (1948). In other words, a peremptory challenge is not exercised in the selection of jurors, but in their rejection. People v. Roxborough, supra. It enables a party to say who shall not try him; but not to say who shall be the particular jurors to try him. United States v. Marchant & Colson, supra.

An accused cannot complain if he is tried by an impartial jury. He can demand nothing more. If, from those who remain, an impartial jury is obtained, the constitutional rights of an accused are maintained. People v. Roxborough, supra; Hayes v. Missouri, 120 U.S. 68, 7 S.Ct. 350, 30 L.Ed. 578 (1887).

The requirement that codefendants use their peremptory challenges collectively [382 P.2d 501] does not violate the sixth amendment of the United States Constitution. Stilson v. United States, 250 U.S. 583, 40 S.Ct. 28, 63 L.Ed. 1154 (1919); Schaefer v. United States, 251 U.S. 466, 40 S.Ct. 259,...