State v. Collins

On Rehearing.

Holcomb, J.

A rebearing having been granted in this case, En Banc, a majority of the court have concluded that the Departmental opinion reported in 112 Wash. 201, 191 Pac. 831, should be.rewritten. For the history of the case and the questions involved, see the Departmental opinion above cited.

The court is in hopeless division upon both of the principal questions involved herein, but in greater confusion over the first question upon which the Departmental opinion was based than upon the second, for the reason that some of the judges who are in accord upon the second ground disagree upon the first.

We believe that the result was correct but the first reason stated therefor was erroneous.

The statutes which provide that a defendant may plead guilty of any offense charg'ed against him (Rem. Code, § 1929), provides also that in all cases where the offense charged involves an injury to a particular person who is within the county it shall be the duty of the justice of the peace to summon the injured person and enforce his attendance at the trial, if necessary; and further, that no justice shall assess a fine or enter a judgment until a witness or witnesses have been examined to state the circumstances of the transaction. (Rem. Code, §§ 1930-1931.)

These are positive mandates to a justice of the peace having a complaint made to him of an assault involving an injury to a particular person within his county. The evident purpose of these statutes was to prevent collusion and inadequate punishment in cases of assault. A justice of the peace has no more power or jurisdiction to assess a fine or enter a judgment until after he has summoned the injured party and enforced his attendance at the trial and heard the testimony of a witness or witnesses to state the circumstances of the assault, than he has to proceed in any criminal case without a complaint first being made to him. It is not a mere formality or directory matter that is required by the statute. It is a matter of substance and a matter of jurisdiction. It is unlike the case we had before us of In re Casey, 27 Wash. 686, 68 Pac. 185, where in a trial before a justice with a jury, the jury rendered a verdict of guilty but failed by its verdict to assess any punishment. Thereupon the justice assessed a fine, and the defendant refusing to pay it he was committed to jail. The statute involved in that case provided that, “such justice, or jury, if they find the prisoner guilty shall assess his punishment”, etc. It was held that the procedure of the justice in assessing the penalty when the jury had failed to do so was simply irregular and voidable, but not void, for the reason that the justice court had jurisdiction of the person and of the subject-matter, and had power to render a judgment of the kind rendered, although it might have been avoided on appeal because of irregularities. Had there been no jury in that case, the justice alone would have assessed the punishment, but the jury having been called it was its duty to assess the punishment, and the duty of the justice to record the punishment fixed by the jury, if within the law. The proceedings were regular up to the time of judgment and the judgment was voidable because not fixed by the proper authority. That is not true of this case. Here the justice had no power to enter any judgment until he had summoned the injured party, enforced his attendance, and received the testimony of a witness or witnesses.

Nor can it be said that, because the record offered by the state was silent as to those steps, it must be presumed that the justice proceeded properly under the statute. It is elementary law that a court which is not a court of record must show its jurisdiction by showing that the steps specified by law necessary to sustain its jurisdiction, were taken. In this case the record is silent as to those steps necessary to sustain the jurisdiction of the justice to enter any final judgment, and therefore it cannot be presumed that he had power sufficient to proceed to judgment. The injured party was within his county and was . not summoned, since the record is silent thereon, nor was any witness, so far as the record discloses, sworn and examined, much less any witness who stated the circumstances of the transaction. The justice’s proceedings, therefore, fail to show a legal conviction of the defendant, and there was no error in rejecting as evidence the record showing such defective proceedings. For this reason the judgment is affirmed.

Tolman and Main, JJ., concur.