State v. Starwich

Citation119 Wash. 561,206 P. 29
Decision Date13 April 1922
Docket Number17093.
CourtUnited States State Supreme Court of Washington
PartiesSTATE ex rel. TINGSTAD v. STARWICH, Sheriff.

Appeal from Superior Court, King County; Calvin S. Hall, Judge.

Petition by the State, on the relation of B. Tingstad, for a writ of habeas corpus to Matt Starwich, as Sheriff of King County. From a judgment sustaining a demurrer to the petition, and an order that G. W. Berg, a prisoner, be remanded to custody petitioner appeals. Affirmed.

E. P Donnelly, of Seattle, for appellant.

Malcolm Douglas and Ewing D. Colvin, both of Seattle, for respondent.


On June 27, 1921, in the superior court of King county, G. W. Berg pleaded guilty to the charge of vagrancy, and was sentenced to serve a term of six months in the jail of that county. The judgment provided, however, that the sentence was 'suspended during good behavior and until the further order of the court.' Thereafter the defendant was given his liberty. More than six months after the entry of this judgment the prosecuting attorney of King county petitioned the court to set aside and vacate so much of the judgment as suspended the sentence. On this application Berg was again arrested on a bench warrant and brought into court. The court, being satisfied that Berg had violated the terms upon which the suspension of sentence was made, entered an order revoking such suspension, and directed Berg to be confined in the county jail for a period of six months, as provided in the original judgment. Thereafter this petition for a writ of habeas corpus was presented, which, in substance, sets out the facts above recited, and alleges that Berg is deprived of his liberty without warrant of law. A demurrer to the petition was sustained, and the court's order was that Berg be remanded to the custody of the sheriff of King county to be confined in the county jail, as provided in the sentence. From this judgment an appeal has been taken.

The courts are in irreconcilable conflict on the question whether the trial court, in a criminal case, has power to suspend the execution of a sentence where there is no statute authorizing such action. Some courts hold that, in the absence of a statute, any action of the court suspending the execution of a sentence is void and of no effect, while other courts hold that the court passing the sentence has an inherent right to suspend it for an indefinite time.

It is not necessary, however, that we discuss this question because during all of the times mentioned there was a statute in this state which reads as follows:

'Whenever any person never before convicted of a felony or gross misdemeanor shall be convicted of any crime [except certain designated ones not involved here], 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, and that the sentenced person be placed under the charge of a parol or peace officer during the term of such suspension, upon such terms as the court may determine. In no case shall a sentence be suspended under the provisions of this section unless the prisoner if sentenced to confinement in a penal institution be placed under the charge of a parol officer, who is a duly appointed and acting officer of the institution to which the person is sentenced.' Laws 1921, p. 204.

Inasmuch as the record fails to show that at the time of the suspension of the operation of the sentence the court placed the prisoner in charge of any parol or peace officer, but, on the contrary, seems to show that such was not done, it becomes essential for us to construe that portion of the section of the 1921 laws with reference to placing the prisoner in charge of some parol or other officer. That law is an amendment of section 2280, Rem. Code, and went into effect less than 30 days prior to the passing of sentence in this case. The original act did not require that the prisoner be put in charge of any officer. The statute is not clearly worded. The last portion of the first sentence requires the prisoner to be put in charge of a 'parol or peace officer,' while the second sentence requires that, if he be sentenced to a 'penal institution,' he must be put in charge 'of a parol officer' connected with that institution. Our statues provide for parol officers for state penal institutions, but not for jails. It would seem that in speaking of penal institutions the Legislature had in mind such penal institutions as are maintained by the state. Our construction of this statute is that if the prisoner be sentenced to serve a term in the county jail he must, if operation of sentence be suspended, be put in charge of some parol or peace officer, who need not necessarily be connected with that institution, and if he be sentenced to a state penal institution he must, if operation of sentence be suspended, be put in charge of some parol officer of such state institution.

The appellant contends, first, that the statute authorizing the court to suspend operation of a sentence indefinitely is unconstitutional because the Constitution places the power of parol and pardon in the executive, and, second, if the statute is not unconstitutional, then, because the court suspended the execution of the sentence in a manner contrary to that provided in the statute, its order was void, and it lost jurisdiction to thereafter require the sentence to be served, and, third, that, in any event, the court did not have power to compel the prisoner to serve the sentence after the period of the sentence had expired.

1. We think the statute authorizing suspension of the operation of a sentence is not violative of the Constitution. Section 9, art. 3, of that instrument, reads:

'The pardoning power shall be vested in the Governor, under such regulations and restrictions as may be prescribed by law.'

Section 11 of the same article provides that:

'The Governor shall have power to remit fines and forfeitures, under such regulations as may be prescribed by law. * * *'

The statute does not undertake to empower the court to pardon or remit fines and forfeitures. It goes no farther than to permit the court to suspend the operation of the sentence 'until otherwise ordered by the court. * * *' The Constitution does not vest in the executive exclusive or any direct authority to parol a prisoner. It is true another statute authorizes a certain board of which the Governor is a member to parol on good behavior, but it exercises such power only after the sentence has been put into operation by the court. The court, by the terms of the statute, suspends--parols, if you please--after sentence, but before it is put into effect. It must be admitted that there is a conflict of authority on this question. Some of the cases hold that the court has no power to suspend the operation of a sentence because so to do would be an encroachment on the constitutional power of the executive, and that any statute which undertakes to give such power is unconstitutional. In re Webb, 89 Wis. 354, 62 N.W. 177, 27 L. R. A. 356, 46 Am. St. Rep. 846; Ex parte Clendenning, 22 Okl. 108, 97 P. 650, 19 L. R. A. (N. S.) 1041, 132 Am. St. Rep. 628; Snodgrass v. State, 67 Tex. Cr. R. 615, 150 S.W. 162, 41 L. R. A. (N. S.) 1144; Neal v. State, 104 Ga. 509, 30 S.E. 858, 42 L. R. A. 190, 69 Am. St. Rep. 175; People v. Brown, 54 Mich. 15, 19 N.W. 571. Other cases may be found in those here cited. Some of the decisions holding to the contrary are: Ex parte Bates, 20 N.M. 542, 151 P. 698, L. R. A. 1916A, 1285; People ex rel. Forsyth v. Court of Sessions, 141 N.Y. 288, 36 N.E. 386, 23 L. R. A. 856; Ex parte Giannini, 18 Cal.App. 166, 122 P. 831; People v. Webster, 14 Misc. 617, 36 N.Y.S. 745; People v. Goodrich (Sup.) 149 N.Y.S. 406; Ex parte Slattery, 163 Cal. 176, 124 P. 856; 8 R. C. L. 248. We elect to follow those cases holding such a statute constitutional. This court, in State v. Mallahan, 65 Wash. 287, 118 P. 42, has recognized the validity of our statute authorizing the stay of the operation of a sentence. We there said:

'That the court had authority to suspend the sentence and later commit the appellant is unquestionably shown' by the statute. 'As to the power of the court to enforce a suspended sentence under these sections, there can be no question.'

2. If, in suspending the operation of the sentence, the appellant had been put in custody of some officer as provided by the statute, we have no doubt the court could, at any time thereafter, upon a showing of a breach of the terms under which the suspension was made, set aside the suspension order and enforce the original judgment for the full term of six months. The statute authorizing the suspension of the execution of the sentence seems to contemplate that this not only may, but shall, be done, because it authorizes the suspension until the further order of the court. The appellant, being the recipient of the favor conferred by the statute, is in no position to claim that the court has lost jurisdiction or power to subsequently commit him. He was lawfully sentenced for six months, and he was relieved, upon certain conditions from serving that sentence. If he break his parol, the court has a perfect right to annul the order of leniency and enforce the original sentence.

'Where the execution of sentence has been suspended as authorized by the probation statute, such order is effective until revoked or modified; and it is improper to issue a commitment for one released until such judgment suspending sentence is modified. However, after suspending the execution of sentence, the court may order the issuance of a commitment and direct the enforcement of the original judgment. * * * Where the execution of sentence is

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