54 Wash. 113 | Wash. | 1909
On the 21st day of April, 1908, a complaint in writing was filed before one of the justices of the peace of Kittitas county, charging that the defendant herein Fred Burns,
“Did on or about the 21st day of April, 1908, in the county of Kittitas and state of Washington, unlawfully conduct*114 a gambling game, to wit a game of draw poker, in the Senate saloon, in Ellensburg, said county and state, contrary to the statute,” etc.
On the following day this complaint was dismissed on motion of the prosecuting attorney in order that an information might be filed directly in the superior court. On the date of dismissal of the complaint filed before the justice of the peace, the prosecuting attorney filed an information in the superior court charging that the defendant herein Fred Burns,
“Did in the county of Kittitas and state of Washington, in a certain building situate upon lot five (5) in block fifteen (15) in the Original Town of Ellensburg, known as the Senate saloon, on or about the twenty-first day of April, A. D., one thousand nine hundred and eight, unlawfully and feloniously conduct, carry on and open a game of draw poker.”
On the 19th day of June, 1908, the last mentioned information was dismissed on motion of the prosecuting attorney, and the defendant was held to await the filing of a new information. Thereafter a second information was filed charging that the defendant
“Did in the county of Kittitas and state of Washington, on or about the twenty-first day of April, A. D. one thousand nine hundred and eight, wilfully, unlawfully, and feloniously conduct and carry on a game of draw poker, then and there being a game played and operated with cards and chips and money, said chips then and there being representative of value; and that said game was played, carried on and conducted in a certain building situated upon lot five (5) in block fifteen (15) in the Original Town of Ellensburg, known as the Senate saloon, the same being a place where persons then and there resorted for the purpose of playing said game.”
To this information the defendant pleaded the dismissal before the justice of the peace, and the dismissal of the first information filed in the superior court in bar, setting forth in extenso the records in both courts. The state demurred
It seems to us that the plea of former acquittal was bad, for two reasons; first, because the information to which the plea was interposed charged a felony under the act of February 16, 1903, Laws of 1903, p. 63, and in such cases the dismissal of a previous complaint or information without trial is no bar to another prosecution. It is said in the appellant’s brief that the demurrer was overruled on the authority of State v. Durbin, 32 Wash. 289, 73 Pac. 373, but in commenting on that decision in the later case of State v. Campbell, 40 Wash. 480, 82 Pac. 752, the court said:
“What was really decided in that case was that, where a party had been charged with assault and battery and a nolle prosequi had been entered to such information for the purpose of allowing the prosecuting attorney to file an information charging the defendant with mayhem based upon the same state of facts, and where, upon the trial on the last information, the defendant was found guilty of assault and battery, such a proceeding was equivalent to trying the -defendant twice for the same offense. But it will not do to lay down a rule to the effect that, in a case where, through inadvertence or misinformation of a prosecuting officer, a defendant has been charged with a misdemeanor — for instance, an assault and battery — and it afterwards eventuates that the actual crime committed was that of an assault with intent to commit murder, or even murder, the law must be content with punishing the defendant for the crime of assault and battery or allow him to escape punishment altogether, by reason of the inability of the state to dismiss the action for assault and battery and indict for the greater offense. Such a determination by a court would surely be the clogging, instead of the lubricating, of the wheels of justice.”
A dismissal without trial is therefore no bar to another prosecution for a felony, under Bal. Code, § 6916 (P. C. § 1536), which provides that “An order for dismissal as provided in this chapter is a bar to another prosecution for
“In England an acquittal on an indictment so defective that, if it had been objected to at the trial, or by motion in arrest of judgment, or by writ of error, it would not have supported a conviction or sentence, has generally been considered as insufficient to support a plea of former acquittal; and this rule has generally been followed in the United States, except in cases expressly governed by some constitutional or statutory provision on the subject.” 12 Cyc. 264.
“A conviction or acquittal by a judgment on a verdict shall bar another prosecution for the same offense, notwithstanding a defect in form or substance in the indictment or information on which the conviction or acquittal took place.”
The common law rule prevails in this state except as modified by statute, and under the statute cited, an acquittal upon a defective information is no bar to another prosecution unless the judgment of acquittal is based upon a verdict after trial. In this case there was no trial and no verdict; hence the dismissals upon the defective complaint and information were no bar to a further prosecution. We have not been favored by a brief on the part of the respondent, but we can conceive of no ground upon which the plea of former acquittal can be sustained.
The judgment is therefore reversed, with directions to sustain the demurrer to the plea, and for further proceedings not inconsistent with this opinion.