State v. Straub

• Decision Date: 08 December 1896
• Parties: STATE v. STRAUB.
• Court: Washington Supreme Court

47 P. 227

16 Wash. 111

STATE v. STRAUB.

Supreme Court of Washington

December 8, 1896

Appeal from superior court, San Juan county; John R. Winn, Judge.

Richard H. Straub was convicted of murder, and appeals. Affirmed.

Charles F. Repath, for appellant.

W. H. Thacker, H. S. King, and Thomas G. Newman for the State.

DUNBAR J.

Defendant was convicted in the lower court of murder in the first degree, and the death penalty was imposed. An appeal has been taken to this court by a bill of exceptions, and many errors are alleged.

The first assignment is that the trial, verdict, and sentence of death are void and illegal, for the reason that the record fails to show that the defendant ever entered a plea to the information. While it must be confessed that many authorities are cited to sustain this contention, and while, in the earlier history of criminal trials, and especially under the common-law practice, such omission was almost uniformly held to be reversible error, we think, under the system adopted by the Code in this state, that such an omission is purely technical, that it does not affect any of the substantial rights of the defendant, and that, if otherwise properly convicted, the judgment should not be reversed. Indeed, this is the holding of many modern courts under statutes similar to ours. The record shows that the defendant demurred to the indictment; that on October 3d he asked for further time in which to plead, being present both in person and by counsel that time was given for one day, or until October 4th; that on October 4th the defendant, on being called on to present a plea, again asked for further time, which was granted, and the time extended one day more, or until October 5th. After that he filed a motion for a change of venue, and court adjourned until October 8th. Subsequently the defendant interposed a challenge to the jury, had subp nas issued for witnesses in his own behalf, introduced evidence in his behalf and testified himself, and in every way, without objection, entered into the trial of the case on the merits; and the case was treated, both by the prosecution and by the defendant, as though a plea had been entered. Defendant availed himself of privileges which he would not have been entitled to on any other theory. The plea of not guilty is a denial of all material allegations, and simply puts them in issue. According to the record, the whole case was tried upon this theory. Under the instructions of the court the jury understood that every material fact was in issue, and that all of said facts must be proven before conviction could follow. Under such instructions the defendant went into the trial with the presumption of innocence in his favor, and the onus was upon the state throughout the trial, and up to the time of rendition of the verdict, to exactly the same extent as it would have been if the plea had been formally entered. So that the defendant actually had the benefit of the plea of not guilty, though it were not formally entered. It affirmatively appears, then from the record, that this error, if error at all, was without prejudice; that it was a mere irregularity, which did not affect any substantial rights of the defendant. And the same law which gives him the right to appeal to this court at all provides, in section 1448 of the Code of Procedure, that "the supreme court shall hear and determine all causes removed thereto, in the manner hereinbefore provided, upon the merits thereof, disregarding all technicalities." Moreover, under the special provisions of our statute, if the defendant does not see fit to plead after the overruling of the demurrer, it is the duty of the court to enter judgment even without trial, except in cases where it is necessary to ascertain the degree of offense. Section 1282 is as follows: "If the demurrer is overruled, the defendant has a right to put in a plea. If he fails to do so, judgment may be rendered against him on the demurrer, and if necessary, a jury may be impaneled to inquire and ascertain the degree of the offense." Nor does this conflict with section 1290, which provides that, "if the defendant fail or refuse to answer the indictment or information by demurrer or plea, a plea of not guilty must be entered by the court," but rather strengthens the construction given above,-that, if the demurrer is denied, further plea is unnecessary, and the result will be the same as in a civil action where, upon the overruling of the demurrer to a complaint, the defendant refuses to answer. But, under the section just above quoted, the plea of guilty is entered by the court only when the defendant fails or refuses to answer the indictment or information, either by demurrer or plea. In addition to this, this question was not raised in the lower court. Many of the cases cited by the appellant, even if we should hold with them, are where the question was raised upon a motion in arrest of judgment, or a motion for a new trial, where the matter was brought to the attention of the trial court, so that it could be corrected there. But in this case the first mention that is made of this alleged error is in the brief of appellant in this court, and, the motion for a new trial being especially intended to direct the attention of the trial court to the error complained of, and his attention never having been so directed, under the rule announced in numerous decisions of this court, it is too late to raise it now. A third reason for refusing a reversal for this alleged error is the fact that it appears from a supplemental record, afterwards certified by the court, that the omission to plead was not an omission in fact, but an omission simply of the record. Upon proper notice to correct the record, it plainly appears that the plea was actually made, but failed to be recorded, and the trial court made an order of entry nunc pro tunc, showing what the actual facts of the case were, and correcting the record in this respect. Any one of the reasons mentioned above would be sufficient to defeat the motion for reversal on this ground.

The next error assigned is that the verdict and sentence are void because the verdict was received and recorded on a nonjudicial day, viz. Sunday. It is admitted by the appellant that the weight of authority is to the effect that the receiving of a verdict is not a judicial, but merely a ministerial, act, which may be done on a nonjudicial day. It is also conceded that we have a statute in this state expressly authorizing courts to receive verdicts on nonjudicial days. But it is contended that section 6 of article 4 of the constitution, which prescribes the jurisdiction of the superior courts, and especially that portion of the section which provides that "they [such courts] shall always be open except on nonjudicial days," and that "injunctions and writs of prohibition and habeas corpus may be issued and served on legal holidays and nonjudicial days," excludes the idea that anything else can be done by the court on nonjudicial days; and that the court cannot be open on nonjudicial days except in matters of injunction, prohibition, and habeas corpus. We do not think that the constitutional provision is susceptible of this construction; but think, as contended by the respondent, that the provision that courts shall always be open except on nonjudicial days in no wise affects the rule, which would obtain in the absence of any such provision, that they could properly be open on such days for the performance of nonjudicial acts, such as the reception of verdicts. The object of the constitution undoubtedly was not to affect the law which already existed in relation to the disability of cou...