State v. Whitney
| Decision Date | 08 September 1966 |
| Docket Number | No. 38957,38957 |
| Citation | 418 P.2d 143,69 Wn.2d 256 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Petitioner, v. Robert WHITNEY, Respondent. |
Lincoln E. Shropshire, Pros. Atty., Benjamin N. Brunner, Deputy Pros. Atty., Yakima, for petitioner.
Palmer, Willis & McArdle, J. W. McArdle, Charles O. Shoemaker, Jr., Yakima, for respondent.
The respondent was charged with the crime of intentionally taking an automobile without permission of the owner. After the jury had been sworn but before the prosecutor's opening statement, the respondent's counsel advised the trial court, in chambers, that he would object to the admission of fingerprint impressions taken from the respondent on the ground that such evidence was privileged under RCW 72.50.100.
The trial court signed an order rejecting the state's offer of proof but granted a continuance, and the respondent consented to a dispersal of the jury for the purpose of allowing the state to apply to this court for a writ of certiorari to review the trial court's ruling on the motion.
At the outset, the petitioning state concedes that the law appears to be against its right to the writ. In the case of State ex rel. Douglas v. Stratiner, 119 Wash. 667, 206 P. 353 (1922), the state asked this court to review by certiorari an order of the trial court granting a motion to suppress evidence. At that time, the state's right of appeal was governed by statute, Rem. Code § 1716, which provided:
But an appeal shall not be allowed to the state in any criminal action, except when the error complained of is in setting aside the indictment or information, or in arresting the judgment on the ground that the facts stated in the indictment or information do not constitute a crime, or is some other material error in law not affecting the acquittal of a prisoner on the merits.
In deciding that the writ should not issue, this court said that the legislature, when it provided that an appeal should not be allowed except in the specified instances, deprived the court of the power to review such questions as that which was before it, either by appeal or by certiorari.
There are two reasons why this case is no longer controlling. One is that the statute in question was repealed by the legislature. Laws of 1957, chapter 10, § 3(14). It has been superseded by Rule on Appeal 14(8). 1 Another reason, with which the repeal of the statute and the enactment of the court rule are in harmony, is that we have since held that the legislature may not deprive the court of its constitutional power of review. State ex rel. Cosmopolis Consolidated School District No. 99 v. Bruno, 59 Wash.2d 366, 367 P.2d 995 (1962).
It is true the majority of courts have held that, at common law, the state did not have the right of appeal in a criminal case, but this does not mean that the supreme court did not have the power to review a criminal case at the behest of the state. The rule denying the state the right to appeal was a common law rule developed or adopted by the courts, and it was neither a constitutional nor a statutory restriction on the judicial power of the courts. Since the rule was made by the courts, it can be changed by the courts; and any expressions found in the cases to the effect that the state has only such rights of review as are granted by the legislature do not represent an abdication of judicial power but only an unwillingness to exercise it.
Whether this power should be exercised to expand the state's right to review in criminal cases is a question not before us now. The rule that the state may not appeal has been criticized by legal scholars. See Moreland, Modern Criminal Procedure (1959), chapter 19; Miller, Appeals by the State in Criminal Cases, 36 Yale L.Jour. 486 (1927); Skelton, State Appeals in Criminal Cases, 32 Tenn.L.Rev. 449 (1965).
The author of the most recent of these discussions points out that there was a time in England when neither the Crown nor the defendant could appeal a criminal case. At that time, the Crown had considerable advantage over the accused, who was not allowed to take the stand in his own defense, or to call witnesses, or to have counsel. Furthermore, torture was often resorted to for the purpose of extracting confessions. It was not surprising, therefore, that the courts and the legislatures of this country should have limited rather strictly the right of the state to appeal. Great concern was felt in this country for the rights of the accused because of the abuses which had been heaped upon him.
However, it soon appeared that a rule which permitted the defendant to appeal, but denied the right of appeal to the state, tended to produce a lopsided administration of justice. Therefore, legislatures began to accord to the state a limited right of appeal; but they have also been cautious in extending such a right, apparently out of concern lest the defendant's constitutional right not to be twice placed in jeopardy for the same offense be invaded. Those who advocate that the state should have the same right of appeal as the defendant argue that the concept of double jeopardy does not logically embrace the conclusion that a second trial, granted after an appeal, is a second jeopardy, but that it is all a part of the same jeopardy.
These writers also urge that there is no longer any merit in the contention that an appeal by the state works an undue hardship on the criminal defendant. It is not a greater hardship than that imposed on a respondent in a civil case, they maintain, and this is true even where the defendant is indigent, now that the courts have accorded to the indigent the right to have counsel paid by the state and a free transcript of the record. Just as the accused has a right to the protection of all the constitutional guarantees, to the end that he may not be unjustly convicted (and the courts in recent years have been particularly solicitious of this right), so society has a right to the protection from its enemies which the criminal laws are designed to effect. The appellate courts should not be closed to the majority, who have expressed their needs and desires through the legislature, any more than they should be closed to the accused.
However, as we have said, we are not called upon here to determine whether Rule on Appeal 14(8) accords too little redress to the state and should be revised. Rather, we are asked to provide an extraordinary remedy which it is within the discretion of this court to grant. It is true that, as a general rule, we will not grant certiorari to review an interlocutory order such as that complained of here. State ex rel. Douglas v. Stratiner, supra. The reason for this rule is that cases should not be tried piecemeal; and questions arising during the course of the trial can, ordinarily, be reviewed on appeal. But the state is not given the right to appeal from an order excluding evidence, and it cannot appeal from a judgment of acquittal. It is evident, therefore, that the question which the state asks us to review is not one which this court will take cognizance of on an appeal, where the order is adverse to the state.
The question then occurs, if we will not review it on appeal under our own rule, why should we review it on certiorari? And the answer to that, in the great majority of cases, would be that we should not. The disrupting of the trial is as great, if not a greater mischief than the refusal to correct error which inures to the benefit of the accused.
However, there are several factors in the case before us which render it different from the ordinary case and weigh in favor of our granting certiorari. First, it is urged before us that the error...
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CITY of SEATTLE v. The Honorable George W. HOLIFIELD
...45 Wash.App. 248, 252, 724 P.2d 1110 (1986). This case concerns the statutory writ. 1Jacob relies heavily on State v. Whitney, 69 Wash.2d 256, 418 P.2d 143 (1966), for this proposition. Jacob's claim that the writ can issue “only” for patent error, however, is not supported by the case law.......
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Washington Public Employees Ass'n v. Washington Personnel Resources Bd.
...does not specifically prohibit appeals of PRB decisions. Further, Douglas is no longer controlling authority. See State v. Whitney, 69 Wash.2d 256, 257-58, 418 P.2d 143 (1966) (Legislature may not deprive the court of its constitutional power of review); see also Williams, 97 Wash.2d at 218......
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State v. TRACER, 37812-4-II
...the non-exclusive language in RAP 2.2(b)(1) allows the State to appeal in extraordinary circumstances. See, e.g., State v. Whitney, 69 Wash.2d 256, 260-61, 418 P.2d 143 (1966) (interlocutory review granted to correct patently erroneous construction of statute likely to recur, which deprived......
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State v. Gunzelman
...right of the State to appeal in criminal cases operated to limit the right of the State to seek certiorari. See also State v. Whitney, 69 Wash.2d 256, 418 P.2d 143 (1966), wherein the Supreme Court of that State granted a writ of certiorari to review the correctness of an order excluding an......