warning that some conceptions of law “once fixed, are pushed to their logical conclusions with inexorable severity”
How later courts described this case
- warning that some conceptions of law “once fixed, are pushed to their logical conclusions with inexorable severity”
- holding that the right to post-conviction release pending appeal is procedural
- noting the category of “[s]ubstantive law” includes laws that regulate “punishments for violations” of other substantive law
- procedural rules “pertain to the essentially mechanical operations of the courts.”
Written by the judges who cited it.
The opinion
Hunter, J.
(concurring in part; dissenting in part) — I agree with Justice Rosellini, with these further observations.
The majority primarily premises its opinion on In re Berry, 198 Wash. 317 , 88 P.2d 427 (1939), wherein we recognized that the constitution is silent as to the limitation or right of a defendant to bail after conviction in a capital case on appeal. It concludes therefore that this court has the inherent power to make any provision it sees fit as to a defendant’s right to bail after his conviction pending appeal in a capital case. With this I cannot agree.
The mere silence of the constitution as to the right to bail pending appeal does not permit a court to enunciate a rule that is inconsistent with and contradictory to a limitation by the constitution placed on a defendant’s right to bail prior to conviction. That the majority has done just this is clearly evident, whereas in this case the conditions were *513 the same after the defendant’s conviction as prior thereto. Const, art. 1, § 20, provides:
All persons charged with crime shall be bailable by sufficient sureties, except for capital offenses, when the proof is evident, or the presumption great.
In the instant case the trial court made a finding that in the case of this defendant (Smith)
proof of guilt is clear and the presumption of guilt is great following the defendant’s conviction by a jury of the crime of Murder in the First Degree.
The trial court then granted bail to the defendant under our rule, CrR 3.2, effective July 1, 1973, which provides for bail in a capital case after conviction pending appeal, where it is determined the defendant would not be likely to flee the state, nor poses a substantial danger to another or to the community. In my opinion this rule can be operative only where its application does not result in its being inconsistent with and contradictory to the constitutional limitation on a defendant’s right to bail prior to his conviction in a capital case; otherwise, the implicit purpose and intent of Const, art. 1, § 20, is violated.
I would therefore reverse the trial court as to the defendant Smith and affirm as to the defendant Forsyth.
Hale, C. J., concurs with Hunter, J.