82 Wash. 330 | Wash. | 1914
This case is here upon the return to an álternative writ of certiorari to review a threatened order of the superior court of Kitsap county, discharging a prisoner upon the sheriff’s return to a writ of habeas corpus issued from that court. The facts are not disputed.
On August 18, 1914, one James Stewart was arrested upon a warrant founded upon an information charging him with the crime of lewdness, under the provisions of the statute defining. lewdness, and declaring it a gross misdemeanor. Rem. & Bal. Code, § 2458 (P. C. 135 § 411). He was confined in the county jail for more than sixty days. No steps were taken to bring him to trial. After the expiration of the sixty days, the prisoner applied to the superior court for his release by writ of habeas corpus. The matter came on for hearing on October 20, 1914, when the court signified an intention to discharge the prisoner for the reason that he had not been brought to trial within sixty days from the filing of the information, and that no postponement had been requested by the prisoner, or by any one in his behalf. The prosecuting attorney then asked leave to dismiss the proceeding upon the original information and to file a new information. The court thereupon entered an order in the original cause, dismissing the same and granting leave to the prosecuting attorney to file a new information. The prisoner was immediately re-arrested by the sheriff on a warrant founded on a new information filed with the court, which charged the same offense and in the same language as in the original information. The prisoner thereupon sued out a second writ of habeas corpus returnable forthwith. The sheriff demurred to the petition for the writ, upon the ground that, under the circumstances appearing upon the face of the petition, the issuance of the writ of habeas corpus is prohibited by statute. The demurrer was overruled. For return to the writ, the sheriff set up the fact that he held the prisoner by virtue of an information and a warrant of arrest issued thereon, copies of which were attached to the return.
The statute, Rem. & Bal. Code, §§ 2312, 2315 (P. C. 135 §§ 119, 125), declares:
“§ 2312. If a defendant indicted or informed against for an offense, whose trial has not been postponed upon his own application, be not brought to trial within sixty days after the indictment is found or the information filed, the court shall order it to be dismissed, unless good cause to the contrary is shown.”
“§ 2315. An order dismissing a prosecution under the provisions of sections 2311, 2312, or 2314¡ shall bar another prosecution for a misdemeanor or gross misdemeanor where the prosecution dismissed charged the same misdemeanor or gross misdemeanor, but in no other case shall such order of dismissal bar another prosecution.”
Under the conceded facts, the trial court clearly had both the jurisdiction and the statutory authority to determine the matter in some sort of proceeding. This is conceded, but it is urged that this power can only be invoked by motion to dismiss the prosecution. The relator advances a number of grounds upon which it is claimed the action of the trial court should be reversed, all of which are referable to the
It is elementary that certiorari lies only where there is no appeal nor any plain, speedy or adequate remedy at law. Rem. & Bal. Code, § 1002 (P. C. 81 § 1729). The statute governing appeals, Rem. & Bal. Code, § 1716 (P. C. 81 § 1183), after according to any party aggrieved an appeal to the supreme court from the final judgment entered in any action or proceeding, further declares in subdivision 7 of the same section:
“But an appeal shall not be allowed to the state in any criminal action, except when the error complained of is in setting aside the indictment or information, or in arresting the judgment on the ground that the facts stated in the indictment or information do not constitute a crime, or is some other material error in law not affecting the acquittal of a prisoner on the merits.”
Whatever the proceedings adopted in the trial court for the release of the prisoner, it is obvious that the release, if contrary to law, would involve “material error in law not affecting the acquittal of a prisoner on the merits.” It is clear, therefore, that the state would have the right of ap
“It is, in effect, to repeal the statute, and declare a policy contrary to that expressly declared by the legislature upon a subject clearly within its province.”
We shall pursue the discussion no further, since, in any event, no order of any kind has yet been made and there is nothing for us to review. We are now clear that, viewing the matter from every 'angle, the alternative writ of review was improvidently issued. Had an order been entered holding the prisoner for trial, and had he applied for the writ of re
■ The proceeding is dismissed.
Crow, C. J., Main, Fullerton, and Mount, JJ., concur.