THE STATE OF WASHINGTON, Rеspondent, v. ROBERT TWITCHELL, Appellant
No. 35871
En Banc. Supreme Court of Washington
February 7, 1963
Petition for rehearing denied March 22, 1963.
378 P. (2d) 444
The urban renewal act as it is now written authorizes the appropriation of private property for private use, and as such runs afoul of amendment 9, Art. 1, §16, of the Washington constitution.
I would reverse the judgment of the trial court.
OTT, C. J., HILL, and DONWORTH, JJ., concur with ROSELLINI, J.
THE STATE OF WASHINGTON, Respondent, v. ROBERT TWITCHELL, Appellant.*
*Reported in 378 P. (2d) 444.
E. Lloyd Meeds, for respondent.
The assignments of error will be discussed in the order in which they are argued in the аppellant‘s brief.
It is the first contention that the grand jury proceedings were erroneously conducted in that an unauthorized person, not required or permitted by law to attend the sessions of the grand jury, was present before that jury during the investigation of the allegations of the indictment. The theory which the appellant advances in support of this cоntention is that John C. Vertrees, an attorney at law who was appointed with Storrs B. Clough to aid in the investigation and presentation of matters of testimony to the grand jury, was commissioned as an honorary deputy sheriff and thereby disqualified to practice law and that consequently he was not authorized to appear before the grand jury in the caрacity of special deputy prosecuting attorney.
“The prosecuting attorney shall attend on the grand jury for the purpose of examining witnesses and giving them such advice as they may ask.”
A deputy prosecuting attorney, having the same powers as a prosecuting attоrney, is authorized to appear in the grand jury room. State v. Austin, 136 Wash. 499, 240 Pac. 676.
“(3) When any person, other than the grand jurors, was present before the grand jury . . . during the investigation of the charge, except as required or permitted by law.”
Deputy sheriffs are forbidden to practice law under
The appellant moved to set aside the indictment, relying solely, insofar as the record reveals, upon an affidavit of Tim McCullough, Sheriff of King County, in which he said that Vertrees had been regularly commissioned and enrolled on the 18th day of December, 1959, as a deputy sheriff, of the classification оf Honorary Deputy Sheriff with full powers, for the county of King, and that his commission had not been resigned nor revoked.
It would appear from the statutes set forth above that, if Vertrees was a deputy sheriff at the time of the grand jury investigation, he could not act as a special deputy prosecuting attorney because he could not practice law. The statutes forbidding deputy sheriffs to practice law have not been before this court before, and we must now determine whether the unilateral act of a sheriff, in commissioning and enrolling an attorney as a special deputy, can operate to deprive the attorney of his right to practice law, since that is the sole questiоn before us on the facts as they appear in the record, which is silent as to whether Vertrees accepted the commission, either expressly or by entering upon the duties of the office; and since the burden is upon the appellant to establish the facts which would disqualify the deputy prosecuting attorney according to his theory, we аssume that Vertrees performed no affirmative act of acceptance.
The result of a holding that a sheriff does have the power to deprive an attorney of his right to practice law, simply by issuing to him a commission and enrolling him as a
We hold, therefore, that the issuance of a commission and enrolling of an attorney as a deputy sheriff does not operate to disqualify him to practice law, in the absence of an affirmative acceptance of the commission on his part. It follows that special deputy prosecutor Vertrees was entitled to practice lаw at the time of the grand jury investigation and was not an unauthorized person in the grand jury room.
The next contention of the appellant is that there was insufficient evidence to convict him.
The crime of wilful neglect of duty is defined in
“Whenever any duty is enjoined by law upon any public officer or other person holding any public trust or employment, their wilful neglect to perform such duty, except whеre otherwise specially provided for, shall be a misdemeanor.”
It was charged in the indictment that the appellant
“. . . did wilfully, and knowingly fail and neglect to perform a duty enjoined upon him by law, in that he knowingly, without making a Complaint and without making an arrest, permitted the keeping of a house of prostitution and the practice of prostitution, each of which constitutes a breach of the peace and a public offense . . . when it is the duty of the said ROBERT TWITCHELL as Sheriff for the County of Snohomish, to make Complaints
The appellant concedes that the indictment correctly states his relevant duties, which are set forth in
“The plain fact of the matter is that the jury was requested to agree or disagree with the method in which the appellant was attempting to perform the duties of his office. If the jury disagreed with the method employed by the appellant thеn they would find the appellant guilty of a crime. The appellant pursued the method of surveillance to suppress the crime of prostitution, refer to the statement of the case. The respondent, with the sanction of the trial court, convinced the jury that the appellant violated his oath of office by not using the ‘mark’ method of suppressing prostitution. This does not constitute the crime of nonfeasance.”
While the appellant does not say so directly in his brief, the only conclusion we can draw from this paragraph is that it is his contention that his duties as sheriff were discretionary, not ministerial. But this is not the case. The statute places upon the sheriff the mandatory duty to make complаint of any violation of the criminal law which comes to his knowledge and to arrest and commit any person who breaks the peace. He is not given discretion to determine whether a violation of the law is better handled by “surveillance” than by complaint or by arrest and commitment. The sole question before the jury was whether the appellаnt had performed these ministerial duties, and its verdict was that he had not. There was ample evidence to support this verdict—evidence that prostitution was carried on in the places alleged, that the appellant had full knowledge
The third contention of the appellant is that the trial court, by setting forth in its instructions the charges contained in the indictment, in effect allowed the pleadings to go to the jury room. The only case which he cites in his argument, State v. Ramos, 159 Wash. 599, 294 Pac. 223, held that there was no merit in this precise contention, which was made there. We said:
“. . . Neither thе letter nor the spirit of the rule [that pleadings shall not go to the jury room] was violated. That rule was not intended, nor will it be allowed, to interfere with the giving of instructions necessary to call attention to the essential issues in the case.”
Nor is there merit in the appellant‘s argument that, by giving additional instructions defining the elements of the crimes which the state was оbliged to prove, the court made the instructions unduly repetitious. Those instructions favored the appellant, for they pointed out to the jury the full extent of the burden of proof which rested upon the state. Had they not been given, we have no doubt that the appellant would be here now complaining of the omission.
The next contention of the appellant is that the court erred in instructing the jury on the law of arrest for a misdemeanor without a warrant. The court instructed the jury:
“The crimes of practicing prostitution and the keeping of a house of prostitution are Gross Misdemeanors under the laws of this State.
“A police officer is entitled to make an arrest for a Gross Misdemeanor without a warrant although the one arrested is not actually violating the law at the time of the arrest if in fact the person‘s conduct is such as to lead a reasonably prudent officer to believe in good faith that the person is violating the law in the officer‘s presence.”
Again, the appellant concedes the law to be that an offiсer may arrest for a misdemeanor under circumstances which would lead a reasonably prudent officer to believe in good faith that there was a violation, and cites
Error is assigned to the refusal of the appellant‘s rеquested instruction on the law of arrest. As the appellant concedes, the instruction was incomplete and made no reference to the right to arrest where there is probable cause to believe that a misdemeanor is being committed. It is not error to refuse an instruction which incorrectly states the law. Robillard v. Selah-Moxee Irr. Dist., 54 Wn. (2d) 582, 343 P. (2d) 565.
Error is also assigned to the rеfusal of a requested instruction stating when a warrant of arrest will issue. Since the appellant was not charged with the duty of issuing warrants, there was no question for the jury to determine in this regard, and the requested instruction was properly refused.
It is finally urged that the trial court was in error in refusing to strike the cost bill, or in the alternative, to strike portions thereof. In suppоrt of this contention, the appellant argues first that there is no statutory authority for the assessment of costs against a defendant who is tried on a charge which is a mere misdemeanor, because no procedure for collection is provided.
“Every person convicted of a crime or held to bail to keep the peacе, shall be liable to all the costs of the proceedings against him, including, when tried by a jury in the superior court, a jury fee as provided for in civil actions, and when tried by a jury before a committing magistrate, six dollars for jury fee, for which judgment shall be ren-
The statute provides that judgment shall be rendered and collection had as in cases of fines. The procedure in cases of fines is set forth in
It is also objected that the statute is unconstitutional in that it deprives the appellant of his property without due process, contrary to the provisions of Art. 1, § 3, of the state constitution. This contention is founded upon the theory that the defendant in a criminal action is not entitled to notice of the contents of the cost bill and a right to raise objections to it. It is true that there is no express provision in the statute for notice or for thе raising of objections.
The statute in question does not provide expressly for the raising of objections to a cost bill, but neither does it рrovide that the clerk shall tax the costs, nor that the costs shall be taxed according to the schedule of fees to be found in the statutes pertaining to civil actions. If only the words of the statute are to be given effect, it is too indefinite to provide a guide for the taxation of costs. It must be assumed that the legislature had in mind the statutes applicable in civil actions, and in the statutes pertaining to the liability for costs in criminal actions, found it necessary to provide only for those matters which are not covered by the civil statutes or which are in conflict with them. The cases of King Cy. v. Seattle, 195 Wash. 293, 80 P. (2d) 838, and
“. . . did not see fit to limit these ‘official services’ to civil causes, the fees provided were intended to apply to criminal cases as well as civil, . . .”
Applying that principle here, we observe that the statute before us is not, by its terms, limited in its application to civil causes, therefore, the procedure prescribed for taxing costs and taking objections was meant to apply in criminal as well as in civil cases.
The alternative cоntention by the appellant that one third of the costs should have been assessed against the state because he was acquitted on one count cannot be sustained for the reason that he has made no attempt to show that one third of the costs, or any portion of them, was attributable solely to the prosecution of the count on which he was acquitted. The appellant does not deny that the same witnesses testified on all counts.
In the case of State v. Birch, 183 Wash. 670, 49 P. (2d) 921, the accused, charged on two counts, was acquitted on one count, and after a new trial, was convicted on the second count. It was held that the accused should pay all of the costs of both trials, inasmuch as the same witnesses testified on both counts, and the expenses would have been the same had he been tried on a single count.
The same situation is presented here. We need not decide, therefore, what the outcome would be if the appellant had been able to show that certain of the costs were attributable solely to the count on which hе was acquitted.
The judgment is affirmed.
OTT, C. J., HILL, DONWORTH, FINLEY, HUNTER, and HAMILTON, JJ., concur.
March 22, 1963. Petition for rehearing denied.