No. 93 | Wash. | Nov 18, 1890
The opinion of the court was delivered by
Defendant was convicted in the superior court of Pierce county of the crime of an attempt to commit rape, and upon June 24,1890, was sentenced to imprisonment in the penitentiary for a term of fourteen years. After his incarceration application was made to the Honorable Theodore L. Stiles, one of the judges of this court, for a writ of habeas corpus, whereupon an order nisi was made by said judge, requiring the warden of the penitentiary to show cause to this court why the writ should not issue.
This being the first proceeding of the kind before us, the question arises as to the jurisdiction of the court in such matters, and it necessitates a construction of § 4, article 4, of the state constitution, as to its purport, and as to wh ether it is self-executing in this particular, and if not, whether an act passed by the last legislature (see Session Laws 1889-90, p. 321) reenacting said section verbatim, vivifies the same, no way having been pointed out as to the manner of procedure in such cases. Also, as to whether the provisions
In the light of all the law submitted to us bearing upon the subject, we are forced to the conclusion that notwithstanding the awkward results that might occasionally be brought about in cases where this court should be called upon to review the proceedings of committing magistrates, which would practically amount to an appeal therefrom, and be a rehearing thereof, that the provisions of the code mentioned do apply to this court until the same are changed by legislative enactment.
We are also of the opinion the constitutional provision in question is within those denominated or recognized as self-executing, especially when considered with the general powers of the court to regulate its proceedings. It can hardly be supposed it was contemplated or intended so important a right as this should be suspended as far as the
An objection was urged that there was no authority for granting an order to show cause at all; that as the laws cited speak nnly of the writ, it must be the writ, if anything. It' is the practice in the United States courts to grant an order nisi, and § 755 of the revised statutes is more imperative than our own in relation to the speedy issuance of the writ. It was also the established practice at the common law to grant a rule nisi in the first instance. See Whart. Crim. PI. & Pr., § 986. Therefore, in view of the lesser expense and greater simplicity of the proceeding in not requiring the presence of the prisoner, we think it. is the better practice and authorized here.
It is further contended that our constitution only gives the supreme court authority to issue the writ as to state officers, although it gives each one of the judges of said court power to issue on behalf of an y person held in custody, and at the option of such judge to make the writ or order returnable before the supreme court. The language of that part of the section is as follows: “The supreme court shall have original jurisdiction in habeas corpus and quo warranto and mandamus, as to all state officers.” And while, perhaps, a literal grammatical construction of this clause, as contended, might not give the court jurisdiction and might prevent its exercise, except as to where state officers are concerned, yet, if so, the language must yield
It is also contended that the lower court had no jurisdiction in this case because the defendant was tried upon an information. In support of this, petitioner argues that as g 2, article 1, of the state-constitution reads, “the constitution of the United States is the supreme law of the land,” and as the constitution provides no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, that there is no authority to try persons in this state for such offenses upon information, claiming that the provi-ions in our constitution relating to prosecutions by information, and to dispensing with grand juries, are of lesser force and' must yield to § 2, quoted. In further support of this position he cites to § 4 of the enabling act, requiring the constitutional convention to declare on behalf of the people that they adopted the constitution of the United States. It is manifest, however, that § 2 only relates to those matters wherein the general government assumes to control the individual states, and the requirement of a presentment by a grand jury is not one of them. That it was not intended to carry the principle further th an this in our constitution is apparent in the light of its other pro
Petitioner further contends that § 7 of the act found at page 100, Session Laws 1889-90, dispensing with grand juries unless ordered by the judge, is void, as not being within the title to the act, which only relates to proceedings by information, and he also claims it is another and distinct subject. To support this our attention is called to § 19, article 2 of our state constitution, which provides: “ No bill shall embrace more than one subject and that shall be expressed in the title,” and to Harland v. Territory, 3 Wash. T. 131; but we are all of the opinion the section of the act referred to is within the title, as in providing for proceedings by information the necessity for a grand jury was dispensed with, and the same act, consequently, could very well provide grand jurors should not be summoned, except in the contingency there mentioned. Nor does it bring another subject into the act in the sense contemplated by the constitutional provision referred to, it not being within the spirit or reason of the prohibition. The subject being in relation to prosecutions for crimes, the matters there legislated upon were all properly included in the act.
It is further urged that the crime of rape is not a statutory offense in this state. That code § 812 was repealed by a subsequent law enacted in 1886, see Session Laws 1885-6, page 84, § 1, which, under the decision of the territorial supreme court in Harland v. Territory, is void, it having been entitled only as an act to amend § 812 of the
Petitioner claims if the code provisions relating to habeas corpus do apply to this court, that we are not prevented from issuing the writ in this case by subdivision 1 of § 677, which prohibits inquiry into the legality of any commitment issued on a final judgment of a court of competent jurisdiction. He claims the lower court, by reason of alleged errors, lost jurisdiction of defendant’s person, and that the writ can issue in all cases where such jurisdiction is wanting. But we are of the opinion said provision does not mean that the writ will lie where the court did not have and maintain such jurisdiction by regular process and proceedings, but means a court competent to exercise jurisdiction in the premises. In such cases, defendants must be left to the remedy by appeal. Ex parte Williams, 1 Wash. T. 240.
Here the superior court had jurisdiction of the offense charged, and, for that matter, it appears of defendant’s person as well. Were any irregularities found in its proceedings we could not review them in this way. The authorities cited by petitioner, where a different rule prevails, were founded upon statutory provisions essentially differing from our own.
The writ is denied.