State v. Schoel

• Citation: 54 Wn.2d 388,341 P.2d 481
• Decision Date: 02 July 1959
• Docket Number: No. 34572,34572
• Parties: STATE of Washington, Respondent, v. Warren W. SCHOEL, Appellant.
• Court: United States State Supreme Court of Washington

Page 388

54 Wn.2d 388

341 P.2d 481

STATE of Washington, Respondent, v. Warren W. SCHOEL, Appellant.

No. 34572.

Supreme Court of Washington, En Banc.

July 2, 1959.

James V. McCabe, Yakima, for appellant.

Ray E. Munson, Ronald F. Whitaker, Yakima, for respondent.

ROSELLINI, Judge.

February 21, 1957, Warren W. Schoel was charged, by information, in Yakima county with the crime of murder in the first degree. The jury were instructed that, under the evidence, they could return one of four verdicts: (1) Guilty of murder in the first degree, (2) guilty of murder in the second degree, (3) guilty of manslaughter, or (4) not guilty. The jury returned a verdict of guilty of murder in the second degree.

The trial judge granted the defendant's motion for a new trial. The jury upon the new trial found the defendant guilty of murder in the first degree. From the judgment and sentence based thereon, the defendant has appealed.

Upon the new trial the defendant moved that the first-degree murder charge be dismissed for the reason that he had been acquitted of the crime of first-degree murder by the jury's verdict in the first trial, finding him guilty of second-degree murder, and that to retry him upon the charge of first-degree murder would constitute double jeopardy.

The defendant assigns error to the denial of this motion. He forthrightly admits that his theory was rejected in State v. Ash, 1912, 68 Wash. 194, 122 P. 995, 39 L.R.A.,N.S., 611, but urges this court to overrule our previous holding in view of the recent case of Green v. United States, 1957, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199.

The fifth amendment to the United States constitution provides in part: '* * * not shall any person be subject for the same offense to be twice put in jeopardy of life or limb * * *.'

The Washington constitution, Art. I, § 9, declares: 'No person shall be * * * twice put in jeopardy for the same offense.'

In 22 C.J.S. Criminal Law § 238, p. 369, it is said:

'That no one shall be twice put in jeopardy for the same offense is an ancient and well established doctrine. It is a part of the universal law of reason, justice, and conscience. It is embedded in the very elements of the common law, and expressed in several of its maxims. This universal doctrine was incorporated into the Fifth Amendment to the constitution of the United States which provides that no person 'shall be subject for the same offense to be twice put in jeopardy of life or limb,' and the constitutions of nearly all the states contain a similar provision, which, however, is merely declaratory of the common-law rule; and, where protection is not given by the constitution, it is secured by the common law. So the plea may be based either on the constitutional guaranty or the common law. The fact that the result of upholding a plea of former jeopardy will be that accused will go without sentence or punishment for an offense to which he had pleaded guilty does not alter his rights or change his position as to his right to plead former jeopardy.'

Justice Black, in speaking for the majority, in Green v. United States, supra, sets forth the philosophy of this constitutional guaranty as follows [355 U.S. 184, 78 S.Ct. 223]:

'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.'

A comparison of the provisions found in the United states constitution and our state constitution with regard to double jeopardy, reveals that the two are identical in thought, substance, and purpose. In a series of cases commencing with State v. Vance, 1902, 29 Wash. 435, 70 P. 34, this court has adhered to the rule that where the language of the state constitution is similar to that of the Federal constitution, the language of the state constitutional provision should receive the same definition and interpretation as that which has been given to the like provision in the Federal constitution by the United States supreme court. In the most recent case, State v. James, 1950, 36 Wash.2d 882, 897, 221 P.2d 482, 491, we stated:

'The provision quoted from the constitution of this state affords appellant the same protection that he could claim under the Federal Constitution. Decided cases referring to the provision in the Federal constitution are in point in connection with questions concerning the similar provision in the constitution of this state.'

In Green v. United States, supra, it was held that in order to secure the reversal of an erroneous conviction of one offense, a defendant was not obliged to surrender his valid defense of former jeopardy on a different offense of which he was not convicted and which was not involved in his appeal.

In State v. Ash, supra, we held contrary to this rule. The reasoning of the court in the Ash case is found in the following excerpt from the opinion [68 Wash. 194, 122 P. 997]:

'The right of appeal is a privilege granted by law, and, when that right is taken advantage of by a defendant convicted of an included offense, he must accept the privilege with all its attendant results, and one of those results, and the one in effect prayed for in all criminal appeals, is to have the appellate court vacate the judgment against him and grant a new trial because he has not had that fair and impartial trial guaranteed him by the constitution, or because some rule of law has been improperly announced to his prejudice. And, when his plea for a new trial has been granted, he is no more in jeopardy as to the greater offense, of which it is said he was acquitted, then as to the included offense of which he was convicted; because by his own act he has procured the trial and its attendant judgment to be set aside and held for naught that he may again be permitted to traverse the charge, as in the first instance.'

The conclusion reached by the court was based upon two premises, which on our reexamination we deem erroneous, (1) that appellate review is a privilege, and (2) that the defendant cannot complain of double jeopardy because on a new trial secured at his behest, he is equally in jeopardy as to the offense fo which he was acquitted and that of which he was convicted.

It is true that under the Federal constitution, appellate review is a privilege; however, the tenth amendment of the constitution of this state guarantees a 'right to appeal in all cases.' Woods v. Rhay, Wash., 1959, 338 P.2d 332.

The doctrine that a person who avails himself of his constitutional right to appeal must of necessity waive another constitutional right, the defense of former jeopardy, renders illusory one of the rights guaranteed by the constitution.

Justice Black in Green v. United States, supra, in speaking of the doctrine of waiver, stated:

'Nevertheless the Government contends that Green 'waived' his constitutional defense of former jeopardy to a second prosecution on the first degree murder charge by making a successful appeal of his improper conviction of second degree murder. We cannot accept this paradoxical contention. 'Waiver' is a vague term used for a great variety of purposes, good and bad, in the law. In any normal sense, however, it connotes some kind of voluntary knowing relinquishment of a right. Cf. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, . When a man has been convicted of second degree murder and given a long term of imprisonment it is wholly fictional to say that he 'chooses' to forego his constitutional defense of former jeopardy on a charge of murder in the first degree in order to secure a reversal of an erroneous conviction of the lesser offense. In short, he has no meaningful choice.'

If a defendant in a Federal court, where appellate review is a privilege, does not waive his constitutional defense of former jeopardy by availing himself of that privilage (and the Supreme Court of the United States so held in Green v. United States, supra), much less does a defendant waive his defense when he takes an appeal to the supreme court of this state, where the constitution grants to him not a mere privilege but a right to have his trial reviewed.

In the first trial, the defendant was charged in an amended complaint in count I with murder in the first degree, and in court II with first-degree assault committed upon the defendant's wife. Upon motion of the defendant, the state was required to elect between these charges and chose to try the defendant on count I, murder in the first degree.

The court defined for the jury murder in the first degree, the included crimes of murder in the second degree, and manslaughter; and in instruction No. 4, the jury was told:

'Under this information, if the evidence shall so warrant, you may find the defendant guilty of murder in the first degree, you may find the defendant guilty of murder in the second degree or guilty of manslaughter or you may find the defendant not guilty accordingly as you find the facts shall warrant under the law as laid down by these instructions.'

The court furnished the jury with forms for a verdict: one form was to be used if the defendant were found guilty of murder in the first degree; one, if he were found guilty of murder in the second degree; one, if he were found guilty of manslaughter; and one, if he were found not guilty.

Pursuant to instruction No. 4, the foreman signed only one form, a verdict of guilty of murder in the second degree.

No other conclusion can be reached than that the jury, by returning the verdict of guilty of the charge of murder in the second degree, did, in fact, return a verdict of not guilty of the greater offense...