State v. Sutton

• Citation: 293 P. 469,159 Wash. 307
• Decision Date: 18 November 1930
• Docket Number: 22815.
• Parties: STATE ex rel. CROCKETT v. SUTTON, Superior Court Judge, et al.
• Court: United States State Supreme Court of Washington

293 P. 469

159 Wash. 307

STATE ex rel. CROCKETT v. SUTTON, Superior Court Judge, et al.

No. 22815.

Supreme Court of Washington

November 18, 1930

Department 2.

Original proceedings by the State, on the relation of George T Crockett, against H. G. Sutton, Judge of the Superior Court for Kitsap County, and another, for an alternative writ of mandate, treated by the court as an application for certiorari.

Order of superior court reversed, and cause remanded, with directions.

Wright & Catlett, of Seattle, for relator.

James W. Bryan, of Bremerton, for respondents.

BEALS J.

George T. Crockett, relator herein, was tried before the superior court for Kitsap county for an offense against the laws prohibiting the possession, sale, etc., of intoxicating liquor. He was by the jury found guilty of the crime of possession of intoxicating liquor with intent to sell, and upon his motion for a new trial being overruled, the court orally announced that Mr. Crockett was fined $300 and costs and sentenced to serve ninety days in the county jail, the jail sentence to be suspended upon payment of the fine and costs and during good behavior. From this pronouncement of judgment and sentence, Mr. Crockett gave in open court oral notice of appeal. In due time, the record on appeal having been filed here, the state moved to dismiss Mr Crockett's appeal as prematurely taken, which motion was granted. State v. Crockett (Wash.) 290 P. 873.

Subsequent to the statement of judgment and sentence above referred to, which was made December 2, 1929, the superior court, December 16, 1929, entered a formal written judgment and sentence embodying the oral pronouncement above referred to. After the going down of the remittitur upon the dismissal of Mr. Crockett's appeal, he, August 30, 1930, filed in the superior court his motion to set aside the formal judgment entered by that court December 16, 1929, above referred to, upon the ground that the judgment was signed by the court in the absence of the defendant. In support of this motion, Mr. Crockett filed his affidavit, in which it was stated that he was not present in court December 16, 1929, when the formal judgment was signed. The motion to set aside the judgment having been regularly noticed for hearing, and counsel for the state having filed an affidavit setting forth certain facts in connection with the subject-matter of the motion, and other affidavits having been filed, the court, after a full hearing, denied Mr. Crockett's motion to set aside the judgment.

Thereafter Mr. Crockett filed in this court his verified petition praying for an alternative writ of mandate directing the trial court to enter an order setting aside the judgment of December 16, 1929, and for a writ prohibiting the sheriff of Kitsap county from enforcing the judgment. An alternative order having been entered and served upon the defendants, the matter was argued both orally and on briefs.

It appearing that plaintiff and relator had mistaken his remedy, which should have been by way of an application for a writ of review, in which proceeding the record made before the trial court upon Mr. Crockett's motion to set aside the judgment of December 16, 1929, could be certified before us for consideration, this court, on its own motion, directed that relator's application for a writ of mandate should be considered as an application for a writ of certiorari, and directed the trial court to forward to this court, for consideration and review, a record of the proceedings had before it upon the motion above referred to. This order having been complied with, and the record being now before us, we proceed to an examination of the questions presented.

This matter will be considered as though the judge of the superior court, whose order overruling relator's motion to set aside the judgment above referred to is sought to be reviewed, were the sole party respondent.

In the first place, respondent moves to dismiss this proceeding upon the ground that the same was not prosecuted within the time limited by law. The proceeding having been instituted to obtain a review of the order of the superior court denying relator's motion to vacate the judgment of December 16, 1929, and the order overruling the motion having been filed September 24, 1930, relator's petition, having been presented to this court September 30, 1930, was timely filed.

Supplementing the statement of facts as contained in the decision of this court dismissing relator's appeal (State v. Crockett, supra), we find that after the oral pronouncement of judgment and sentence, made by the trial court in the presence of the defendant Crockett December 2, 1929, the trial court, December 16, 1929, in the absence of the defendant, signed a formal written judgment embodying the judgment and sentence orally pronounced in open court, defendant being present. Just when relator learned of the entry of this formal written judgment is in dispute. For the purposes of this opinion we assume that he learned of the entry thereof within a comparatively short time after the same was entered. Relator contends that as this court has held that an oral pronouncement of judgment will not afford any basis for an appeal to this court when a formal written judgment is thereafter entered ( Strickland v. Rainier Golf & Country Club (Wash.) 287 P. 900; State v. Crockett, supra); Rem. Comp. Stat. § 2196, infra, must refer to the signing of the formal written judgment, that being the only judgment from which a defendant may appeal.

The following sections of Rem. Comp. Stat. are pertinent to the question under discussion:

Section 2187: 'When the defendant is found guilty, the court shall render judgment accordingly and the defendant shall be liable for all costs, unless the court or jury trying the cause expressly find otherwise.'

Section 2190: 'After verdict of guilty or finding of the court against the defendant, if the judgment be not arrested or a new trial granted, the court must pronounce judgment.'

Section 2196: 'For the purpose of judgment, if the conviction be for an offense punishable by imprisonment, the defendant must be personally present; if for a fine only he must be personally present, or some responsible person must undertake for him to secure the payment of the judgment and costs; judgment may then be rendered in his absence.'

Section 2198: 'When the defendant appears for judgment, he must be informed by the court of the verdict of the jury, and asked whether he have any legal cause to show why judgment should not be pronounced...