State v. Powell

• Decision Date: 18 July 1929
• Docket Number: 21838.
• Citation: 153 Wash. 110,279 P. 573
• Parties: STATE v. POWELL.
• Court: Washington Supreme Court

279 P. 573

153 Wash. 110

STATE v. POWELL.

No. 21838.

Supreme Court of Washington

July 18, 1929

Department 2.

Appeal from Superior Court, Kitsap County; H. G. Sutton, Judge.

O. W Powell was convicted of a third violation of the prohibition law, and he appeals. Affirmed.

Chas H. Miller, of Seattle, for appellant.

James W. Bryan, of Bremerton, for the State.

PARKER J.

This is an appeal by the defendant, Powell, from a judgment of the superior court for Kitsap county sentencing him to the penitentiary upon a third conviction of the violation of our intoxicating liquor prohibition law. Appellant was, by court 1 of [153 Wash. 111] the information, charged with the offense of unlawfully selling intoxicating liquor in that county, and further charged with two prior convictions of violation of our intoxicating liquor prohibition law. By counts 2, 3, 4, 5, and 6 of the information appellant was further charged with additional later violations of our intoxicating liquor prohibition law. Being arraigned appellant pleaded not guilty. Thereafter he asked to be permitted to withdraw his plea of not guilty and enter a plea of guilty to count 1 of the information. The trial judge permitted this to be done, and caused record thereof to be entered as follows: 'Defendant asks permission to withdraw plea of not guilty heretofore entered and enter a plea of guilty to Count One of Information. Permission granted and defendant pleads that he is guilty to Count One as charged in Information. Sentence deferred.' Appellant was then permitted to remain at large, evidently upon bail. Nothing further was done in the case until a considerable time thereafter when appellant was, by a show cause order, cited into court looking to the rendering of final judgment against him upon his plea of guilty to count 1 of the information. He then resisted the rendering of final judgment against him upon his plea of guilty to count 1. Appellant's contentions in that behalf being overruled, the court rendered final judgment against him sentencing him to the penitentiary upon his plea of guilty to count 1 of the information. It is from this judgment that this appeal is prosecuted.

It is contended in behalf of appellant that the trial court erred in deferring sentence. His counsel seems to rely upon the following mandatory language of section 2190, Rem. Comp. Stat.: 'After verdict of guilty or finding of the court against the defendant, if the judgment be not arrested or a new trial granted, the court must pronounce judgment.' We assume that this language is mandatory as applicable to a plea of guilty as well as to a verdict of guilty; but we cannot see that the mere deferring of sentence upon appellant's plea of guilty deprived the court of the power to later render judgment and sentence thereon.

Appellant also seems to contend in the alternative that this was a suspension of sentence under the following language of section 2280, Rem. Comp. Stat.: 'Whenever any person never before convicted of a felony or gross misdemeanor shall be convicted of any crime except murder, burglary in the first degree, arson in the first degree, robbery, carnal knowledge of a female child under the age of ten years, or rape, the court may in its discretion, at the time of imposing sentence upon such person, direct that such sentence be stayed and suspended until otherwise ordered by such court. * * *' This language plainly contemplates the staying of execution of sentence after it is pronounced in the form of a judgment. State v. Stuttard (Wash.) 277 P. 83. When the court entered of record 'Sentence deferred,' no sentence judgment had been rendered against appellant. This, we think, answers counsel's seeming further contention that, if the deferring of sentence did not free him, it was in effect a suspension of sentence, and that in the light of the showing made the court was not warranted in revoking such suspension.

It is contended in behalf of appellant that the trial court erred in denying his motion to permit the withdrawal of his plea of guilty and enter a plea of not guilty. This was a ruling within the discretion of the trial court, which we should not disturb in the absence of a clear abuse of such discretion. State v. Cimini, 53 Wash. 268, 101 P. 891, State v. Salmeier, 148 Wash. 627, 269 P. 798. Plainly, the record brought here does not call for our interference with this ruling of the court.

Some contention is made in behalf of appellant, and presented to us practically without argument, that the court erred in denying his motion to arrest judgment upon the statutory ground 'that the facts as stated in the * * * information do not constitute a crime or misdemeanor.' Section 2183, Rem. Comp. Stat. We think we need say no more than that this contention is without merit.

Some contention is made in behalf of appellant th...