State v. Brown , 26 Wash. 2d 857 ( 1947 )

The reasons advanced in the majority opinion for disregard of the rules respecting appeals in criminal cases are that: (1) None of the counsel involved is familiar with the decisions of this court construing the jurisdictional features of the present Rule 12 and the prior rules of this court covering the same subject. (2) Appellants' lack of funds with which to pay the filing fee in this court. (3) Presumption of race prejudice. (4) The more atrocious the offense the defendants are charged with committing, the more lax should be our rules of procedure; that the crime of murder justifies changing "in the middle of the game" the rules to except the accused from operation of the rules or excuse his violation of the rules in that particular instance.

I doubt if counsel for appellants welcome the invidiousness implicit in the statement that none of the counsel is familiar with the decisions of this court or the applicable rules. Be that as it may, ignorance of counsel or client may not excuse disregard of rules which are, or should be, as highly respected as a statute. Times have changed! It now appears that ignorance of the law excuses a defendant or his counsel from the penalties for breach of the law.

There is no statute and I know of no authority under which this court may permit the filing of appeals in forma pauperis.

On the hustings the campaign speaker may, to further his political fortunes, indulge in charges of race prejudice on the part of his opponent; but I deem such unsupported charge out of place in a court of appeals for the purpose of justifying departure from well-established rules.

The argument, in effect, that, if the crime committed is so abhorrent as to merit the death penalty, our rules should be less strict, is without merit.

In the case of State v. Scott, 20 Wn.2d 696, 149 P.2d 152, we refused to consider errors predicated on instructions not printed in the brief of appellant and errors concerning instructions relative to which appellant had taken insufficient exceptions. The appellant was convicted of the horrible crime of carnal knowledge of a child. We stated that it might seem that the rules were harsh when applied to a case as serious in its consequences as the one then before us, but we said those rules had been in effect for a long time and were known or should be known to all who seek review of a judgment of the trial court. We stated the purpose of the rules was in aid of the orderly administration of justice, and that, if those rules are to serve the purpose intended, they must be enforced.

In State v. Currie, 200 Wn. 699, 94 P.2d 754, we said:

"It is true that the court has the power to change and rewrite the rule, but that is a very different thing from excepting a particular individual from its operation or excusing its violation in a particular instance."

In other words, we should not breach our rules "in the middle of the game." In that case, the defendant was convicted of being an habitual criminal and sentenced to confinement in the state penitentiary for life. He attempted to personally conduct his appeal, an undertaking which was beyond his capacity and understanding. We dismissed his appeal because he failed, in his ignorance of rules of procedure, to timely perfect his appeal.

Bad laws and rules can be endured; but the uncertain law or rule — one that shifts and changes each time it is invoked in the courts — "is as sore an evil and as heavy a curse as any people can suffer." Hole v. Rittenhouse, 2 Phila. 411, 417.

The instant decision tends, as observed by Mr. Justice Roberts in Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 151 A.L.R. 1110, to bring adjudications of this tribunal into the same class as a restricted railroad ticket, good for this day and train only.

Mr. Justice Roberts used the following apt language in his dissenting opinion in Mahnich v. Southern S.S. Co.,321 U.S. 96, 64 S.Ct. 455:

"Respect for tribunals must fall when the bar and the public come to understand that nothing that has been said in prior adjudication has force in a current controversy."

In State v. Conners, 12 Wn.2d 128, 120 P.2d 1002, defendant appealed from conviction of crime of grand larceny. Every step in perfecting the appeal was timely and strictly conformed to the rules of this court except payment of required appearance fee of five dollars. Under the rules, the fee should have been paid on or before the sixtieth day after giving notice of appeal. As the clerk of this court did not receive the filing fee until the sixty-second day after notice of appeal was given, we dismissed the appeal. See, also, State v. Nelson, 6 Wn.2d 190, 107 P.2d 1113.

In State v. Hampson, 9 Wn.2d 278, 114 P.2d 992, defendant was convicted of the crime of murder in the first degree and sentenced to the penitentiary for life. Appellant was thirteen days late in filing an abstract of the record. On that ground, we dismissed his appeal.

In State v. Domanski, 9 Wn.2d 519, 115 P.2d 729, defendant was convicted of being an habitual criminal and sentenced to life imprisonment. We held that his failure to follow the rule of this court requiring the setting out of instructions in the opening brief could not be excused. Although he filed on the day of the argument in this court a document setting out the challenged instructions, we refused to consider them.

In State v. Schafer, 154 Wn. 322, 282 P. 55, appellant was found guilty of murder in the first degree and the death penalty exacted. We refused to relax the rule which then required filing of bill of exceptions or statement of facts within ninety-day period.

In State v. Hall, 185 Wn. 685, 56 P.2d 715, defendant appealed from conviction of murder and death sentence. We held that appellant had not substantially complied with the rule that errors assigned but not argued in the brief would not be considered.

In State v. White, 40 Wn. 428, 82 P. 743, defendant appealed from conviction of crime of murder in the first degree. Appellant was unable to secure within the time required by the rules a transcript by reason of his poverty. We dismissed the appeal and held that such right could be forfeited by reason of his poverty. See, also, State v. Harder, 130 Wn. 367,227 P. 501.

It may seem, as we have observed more than once in our opinions, that the rules which must be followed in perfecting criminal appeals are harsh when applied to a case as serious in its consequences as the one now before us, but an appellant's ignorance or a lawyer's ignorance of the applicable law or rule should not except such individual from operation of the statute or rule or excuse its violation. If lack of funds excused violation of the rules, a large majority of the criminals brought to justice would never be convicted. The money obtained by criminal effort is usually dissipated before the offender is apprehended. The argument that it will be presumed that race prejudice deprived appellants of a fair trial, hardly merits passing notice.

We should not complain in the future of the failure of litigants to comply with our rules, in view of the contempt we have shown for same. See Dill v. Zielke, ante p. 246,173 P.2d 977; In re Whittier's Estate, ante p. 833,176 P.2d 281.

It would appear that, when John Doe endeavors to prosecute an appeal to this court, we rigorously exact compliance with the conditions prerequisite to jurisdiction, even refusing to read appellant's brief when errors are not assigned therein. When Richard Roe appeals to this court our mood may be such that his noncompliance with all of the rules — jurisdictional and otherwise — will be condoned because, perchance, we may ascertain from a reading of his brief that he sought reversal or modification of the judgment. Is not the purpose of every appeal to obtain a new trial, a modification or reversal of the judgment, or a dismissal of the action if the appellant is the defendant?

I note the observation in the majority opinion that the prosecuting attorney of Franklin county appeared in this court and orally stipulated that the motion of appellants be granted. The prosecuting attorney, who is a recent addition to the ranks of the legal profession, was elected prosecuting attorney a few months ago. Doubtless, possessed of the spirit of good will that exists between members of our profession, the prosecuting attorney manifested a camaraderie which seldom is present in a criminal action. I doubt that this representative of the state will, in the future, waive jurisdictional prerequisites in a criminal action, as it is suggested in the majority opinion he has done in the case at bar. That fine quality of mercy exhibited by the prosecuting attorney may be commendable, but we have so often said that jurisdiction may not be stipulated that I marvel at the majority in leaning on this reed.

The argument in the majority opinion that the rules should not be so rigorously applied to the more hardened criminal who has committed an atrocious crime, does not appeal to me. The excuses upon which the majority opinion is based are more maudlin than judicial.

Every one accused of crime is entitled to a fair trial.Appellants had a fair trial. The orderly administration of justice demands that they be required to conform to the rules the same as any other accused. The people are entitled to expeditious administration of justice in criminal cases. It is clear that appellants had a fair trial, and that there was no race prejudice in the case. The three appellants are guilty of first degree murder, yet the jury, while finding all three guilty, recommended the death penalty against two only. We need fewer stump speeches and quick evenhanded justice to curb the criminally inclined.

The appeals should be dismissed.