State v. Superior Court of King County

• Decision Date: 28 July 1925
• Docket Number: 19410.
• Citation: 238 P. 9,135 Wash. 458
• Parties: STATE ex rel. ZBINDEN v. SUPERIOR COURT OF KING COUNTY et al.
• Court: Washington Supreme Court

238 P. 9

135 Wash. 458

STATE ex rel. ZBINDEN v. SUPERIOR COURT OF KING COUNTY et al.

No. 19410.

Supreme Court of Washington

July 28, 1925

Department 2.

Prohibition by the State of Washington, on the relation of Ray Zbinden to the Superior Court for King County and Edward C. Mills Judge thereof. Writ denied.

Hermon S. Frye, of Seattle, for relator.

Ewing D. Colvin and Ralph Hammer, both of Seattle, for respondents.

TOLMAN C.J.

Relator was on March 21, 1925, by information, charged with the crime of grand larceny, in that by false representations he did on February 15, 1925, obtain the sum of $800, the money and property of Boone & Co., a copartnership. To this charge he entered a plea of guilty, and made a full confession of a series of acts or offenses beginning some two years before, through which he had first obtained from different brokers a sum approximating $10,000 that all of the subsequent acts, including the one charged in the information, were committed for the purpose of obtaining money to pay back the moneys previously wrongfully obtained, and that the proceeds of the later acts were all so used. A full investigation of relator's conduct was made, and all of his criminal acts were disclosed to the court before whom the charge was pending, and considered in fixing the sentence. Thereafter the relator was sentenced to imprisonment in the state reformatory for a period of not less than one year and not more than ten years, and the sentence was suspended during good behavior. Immediately following the entry and suspension of sentence, as above related, a new and independent action was commenced against the relator by the filing of an information charging him with grand larceny, committed by like means on January 26, 1925, whereby he obtained the sum of $700, likewise the money and property of Boone & Co. To this information he filed a plea in abatement, setting up in detail all that occurred in the course of the prosecution of the previous charge, and pleading the prior conviction as a bar. Whether this plea was withdrawn or overruled does not clearly appear from the record brought here, but it does appear that thereafter a plea of guilty was entered, and when he was brought before the court for sentence a motion was interposed asking that any sentence imposed be suspended. Thereupon the trial court, among other things, said:

'From the tenor of my remarks that I have already made, it must have been apparent to every one who heard them what I purposed doing; but, in case it was not apparent, I will say that it was my purpose to have suspended this sentence, because I believe it is the right thing to do. However, this statute which is now at this time called to my attention seems to prohibit the court from doing that. Consequently I am going to impose sentence and refuse to suspend it upon this ground, not that I think there ought to be imposed a sentence of imprisonment, but because I feel that the statute leaves me no option in it. I think that leaves it open, notwithstanding this plea of guilty, for the matter to be taken before the Supreme Court, so that it may construe the statute and decide what I have a right to do under it in a case like the one before me. I am refusing to suspend the sentence because, and only because, I feel that I cannot suspend it. I feel that it ought to be suspended under the peculiar circumstances of the case. I hope this is in such a condition that the matter can be reviewed by the Supreme Court. I will say, as to length of sentence to be imposed, that it would be somewhat different than if I was not going to suspend it.'

By agreement between the court and counsel, the actual imposition of the sentence was withheld, to permit of an application to this court for a writ of prohibition; this proceeding was instituted, and by it the one question of the right or power of the trial court to suspend sentence is here presented.

The statute in question reads as follows:

'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,

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