State v. Roybal

• Decision Date: 26 July 1973
• Docket Number: No. 42732,42732
• Citation: 82 Wn.2d 577,512 P.2d 718
• Parties: The STATE of Washington, Respondent, v. Jose Arthur ROYBAL, Petitioner.
• Court: Washington Supreme Court

Page 577

82 Wn.2d 577

512 P.2d 718

The STATE of Washington, Respondent, v. Jose Arthur ROYBAL, Petitioner.

No. 42732.

Supreme Court of Washington, En Banc.

July 26, 1973.

Loney, Westland, Raekes, Rettig & Sonderman, Carl G. Sonderman, Kennewick, for petitioner.

C. J. Rabideau, Pros. Atty., Pasco, for respondent.

BRACHTENBACH, Associate Justice.

The fifth amendment to the United States Constitution guarantees that no person shall 'be subject for the same offense to be twice put in jeopardy of life or limb'; this guarantee is made enforceable against the states through the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Important questions regarding the meaning of the term 'same offense' are raised by this case.

Jose Arthur Roybal contends that his multiple prosecution subjects him to double jeopardy. The stipulated facts indicate that on July 3, 1972, Roybal was charged in the Pasco City Police Court with carrying a concealed weapon, a pistol, in violation of 9.24.010 of the Pasco Municipal Code:

9.24.010. It is unlawful for any person to carry or wear concealed upon his person, or concealed in any vehicle, a weapon, consisting of either a pistol, revolver, or other firearm . . .

On July 5, 1972, the Franklin County Prosecuting Attorney charged Roybal with a violation of RCW 9.41.040:

No person who has been convicted in this state of elsewhere of a crime of violence, shall own a pistol or have one in his possession or under his control. Such person upon being convicted of a violation of this section shall be guilty of a felony and punished by imprisonment in the state penitentiary for not less than one year nor more than ten years.

Both of these charges arise out of the same incident.

The defendant pleaded guilty to the police court charge, but pleaded not guilty to the state charge in superior court. The superior court subsequently denied Roybal's motion to dismiss, grounded on the bar of double jeopardy. While defendant relies solely upon the fifth and fourteenth amendments to the United States Constitution, article 1, section 9 of the Washington State Constitution contains essentially the same prohibition against twice placing a defendant in jeopardy for the Same offense. The Court of Appeals granted certiorari and entered an order staying the proceedings; we granted the request for certification by the Court of Appeals.

The concept of double jeopardy embodies a legal and social principle of the most fundamental nature. In America its history can be traced to the year 1641 in the Massachusetts Colony. J. Sigler, Double Jeopardy (1969) at 2--21. The essence of this guarantee is that no person may be forced to twice 'run the gantlet' for an alleged offense. Green v. United States, 355 U.S. 184, 190, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). In Green at 187, 78 S.Ct. at 223, the court explained the rationale for this rule:

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

The main judicial difficulty in enforcing this guarantee has been formulating a test for determining whether multiple prosecutions are indeed for the 'same offense.' Before proceeding to that problem, however, we first consider the threshold question of whether the state and its municipalities are separate sovereign entities, each constitutionally entitled to impose punishment for the same alleged crime. In Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970), the United States Supreme Court rejected the 'dual sovereignty' theory in this context and held that a defendant could not lawfully be tried for the same alleged crime by both a municipal government and the state. We therefore overrule State v. Tucker, 137 Wash. 162, 242 P. 363, 246 P. 758 (1926), and all other prior decisions wherein we have held that a person may be tried for the same offense both under a city ordinance in a municipal court and under a state statute in a state court. The state and its municipalities are not separate sovereign entities with reference to the double jeopardy prohibition.

However, the holding in Waller v. Florida, Supra, 397 U.S. at 395, 90 S.Ct. at 1189, was a narrow one:

We decide only that the Florida courts were in error to the extent of holding that--

'even if a person has been tried in a municipal court for the identical offense with which he is charged in a state court, this would not be a bar to the prosecution of such person in the proper state court.'

The court in Waller did not reach the question remaining before us: 'Whether in fact and law petitioner committed separate offenses which could support separate charges . . .' Waller at 390, 90 S.Ct. at 1186.

Courts have developed two generalized rules for defining the 'same offense,' often referred to as the 'same evidence' test and the 'same transaction' test. Comment, Double Jeopardy--Defining the Same Offense, 33 La.L.Rev. 87 (1971); Comment, The Double Jeopardy Clause, 19 U.C.L.A.L.Rev. 804 (1972).

The 'same evidence' test, considered the majority rule, has not been uniformly defined or applied, but generally appears in one of three versions:

Required evidence tests hold that offenses are 'the same' if the elements of one are sufficiently similar to the elements of another. Alleged evidence tests find offenses the same if there is sufficient similarity between the allegations of the two indictments. Actual evidence tests find the offenses the same if there is a similarity between the evidence presented at the two trials.

Comment, Twice in Jeopardy, 75 Yale L.J. 262, 269--70 (1965).

The 'same transaction' test focuses on the defendant's behavior rather than the evidence or laws. As articulated by Justice Brennan, concurring in Ashe v. Swenson, 397 U.S. 436, 453, 90 S.Ct. 1189, 1199, 25 L.Ed.2d 469 (1970), 'the Double Jeopardy Clause requires the prosecution, except in most limited circumstances, to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction,' regardless of a similarity of the offenses. This test of the 'same offense' has not yet gained the approval of a majority of the United States Supreme Court. See Ashe v. Swenson, Supra, at 448, 90 S.Ct. 1189 (Harlan, J., concurring opinion); Grubb v. Oklahoma, 409 U.S. 1017, 93 S.Ct. 450, 34 L.Ed.2d 309 (1972) (Brennan, J., dissenting opinion), denying cert. to Okl.Cr., 497 P.2d 1305 (1972).

This court adopted a form of the same evidence test at an early date. In State v. Reiff, 14 Wash. 664, 667, 45 P. 318, 319 (1896), the court sought to determine whether the offenses were 'identical both in fact and in law' by applying the following standard:

'A conviction or acquittal upon one indictment is no bar to a subsequent conviction and sentence upon another, unless the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other.'

Quoting with approval Morey v. Commonwealth, 108 Mass. 433, 434 (1871).

Noting that 'There are elements requisite to each (offense) which are not necessary to the other, and proof of the offense charged in either of the informations would not be sufficient to sustain a conviction under the other,' the court found no double jeopardy. State v. Reiff, Supra, 14 Wash. at 667, 45 P. at 319.

In State v. Barton, 5 Wash.2d 234, 237--238, 105 P.2d 63, 66

(1940), we further explained...