9 Wash. 336 | Wash. | 1894
The opinion of the court was delivered by
— This is an appeal from an order prohibiting defendants from further proceeding in the prosecution of the relator for forgery.
The following is an extract from the brief of the relator:
‘ ‘ Relator was discharged and an indictment against him for felony dismissed by the superior court of King county aforesaid, under the provisions of § 1369 of 2d Hill’s Statutes and Codes and § 22 of the declaration of rights in our constitution, because without fault of his own or other cause and notwithstanding his repeated demands thereof,*337 he was deprived of his right to a speedy trial within sixty days by the acts of the prosecuting attorney. It must be conceded that if §1374, 2d Hill, providing that such a discharge is not a bar to a further prosecution for the same alleged felony, is (first) a subsisting law and (second) constitutional, the demurrer should have been sustained. ’ ’
From this it will be seen that but a single question is presented for our decision, and that is as to whether or not said § 1374 is in force. This section was in the Code of 1881 as §777 and in the same chapter was §772 which provided as follows:
“If a defendant indicted for an offense, whose trial has not been postponed upon his application, be not brought to trial at the next regular term of the court in which the indictment is triable after the same is found, the court must order it to be dismissed unless good cause to the contrary be shown.”
In 1891 (Laws 1891, p. 64, § 94), said § 772 was amended to read as follows:
“If a defendant indicted or informed against for an offense, whose tl'ial has not been postponed upon his application, be not brought to trial within sixty days after the indictment is found or the information filed, the court must order it to be dismissed, unless good cause to the contrary be shown.”
It is claimed on the part of the relator that the effect of so amending this section was to repeal said § 777. His contention is that the last named section was but a proviso to other sections in the chapter, among which was § 772, and that for that reason when § 772 was amended and in the amended section this provision was omitted, the effect was to repeal it, the same as if, instead of having been an independent section, it had been attached to the section amended as a proviso. That the amendment of a section repeals the amended one is evident, but it does not follow that an independent section, even though its force depends
It is further contended on the part of the relator that the act of February 24, 1891, repealed all of the provisions of the then existing law relating to criminal procedure, for the reason that the design of the act was to provide a complete system upon that subject. If it appeared from said act that it was the intent of the legislature to provide by independent enactment an entire code as to these proceedings, there would be force in the contention of the re
Belator further contends that, even although such is the fact, it should not be given force by reason of its conflict with the provisions of § 22 of art. 1 of our constitution. It is claimed that §1369, Code Proc., should be held to be a legislative designation of what constitutes a speedy public trial as provided for in said section of the constitution,
It follows from what we have said that §1374 is a subsisting law, and not in conflict with any constitutional provision, and that, under the statement of the issues as shown by the extract from relator’s brief hereinbefore set out, the demurrer to the petition should have been sustained.
The order granting the writ of prohibition will be reversed, and the cause remanded with instructions to sustain the demurrer to the petition.
Stiles and Anders, JJ., concur.
Dunbar, C. J., dissents.