118 P.2d 959 | Wash. | 1941
At the time the defendant changed his plea from not guilty to guilty, and at the time he was sentenced, he was represented by counsel, but not the same counsel that appear for him upon this appeal. He was sentenced to the state penitentiary at Walla Walla "for the maximum term of fifteen years," and from this judgment and sentence he appealed.
The appellant makes two assignments of error which, in the brief, are discussed together, and the first of which is that the court erred in refusing to suspend the appellant's sentence and based its opinion upon a personal investigation; and, second, in not allowing the accused to face the third parties, whom the court had interviewed, and cross-examine them.
[1] The position of the appellant can best be stated by quoting a portion of a paragraph in his brief as follows:
"This was appellant's first offense and, no doubt, he had been advised that the Court could, in its discretion, *205 suspend his sentence. Had appellant known that the Court would confront him with facts gained from third parties which would materially influence the decision of the Court, without giving appellant the opportunity to examine the accusers, would he have plead guilty? Counsel believe that he would not.
"Although the hearing to pass sentence was not in the true sense a `trial,' nevertheless, the only evidence used in determining whether appellant's sentence should be suspended should have been produced in a strictly judicial manner. Evidence brought into court is the only method of investigation into facts known to the law."
Apparently, the appellant's position is that he was entitled to a hearing upon the question of whether his sentence should be suspended. It must be remembered that the suspension of a sentence rests in the discretion of the court. Rem. Rev. Stat., § 2280 [P.C. § 8715], provides that, whenever any person never before convicted of a felony or gross misdemeanor shall be convicted of any crime, except certain specified crimes of which grand larceny is not one,
". . . the court may in its discretion, at the time of imposing sentence upon such person, direct that such sentence be stayed and suspended until otherwise ordered by such court."
In the case of State ex rel. Burgunder v. Superior Court,
"If sufficient information has not been acquired prior to that time, he may, without doubt, take a reasonable time for investigation in order that he may fix the *206 punishment with due regard to maintaining the dignity of the law, the protection of society, the reformation of the offender, and all like matters proper to be weighed and considered in determining the penalty."
When the law was that the court exercised a discretion in fixing the penalty of a person convicted of crime, this court consistently refused, when the matter was directly presented, to interfere with the trial court's exercise of its discretion.State v. Van Waters,
Cases, such as Elston v. McGlauflin,
Nor do cases which hold that, after there has been a suspension, it cannot be revoked without giving notice and a hearing to the defendant, because to do so would be invading his constitutional rights, have any application to the present situation. State v. O'Neal,
The case of People v. O'Brien,
So far as we are informed, no case has held that the court, in determining whether a sentence shall be suspended, is required to give the defendant a hearing upon that matter.
The judgment will be affirmed.
ROBINSON, C.J., MILLARD, STEINERT, and DRIVER, JJ., concur.