10 Wash. 235 | Wash. | 1894
The opinion of the court was delivered by
On the 20th day of November, 1893, appellant was brought to trial upon an information charging him with the crime of burglary committed in' the night time. Thereupon the prosecuting attorney moved the court to quash the information, and for leave to file a new one. The journal entry of the transaction contains the only statement in the record concerning the court’s action upon this motion, and is as follows : ‘ ‘ The court after being fully advised in the premises grants said motion, and also grants leave to file a new information.” The prosecutor forthwith filed a new information, charging burglary generally ; a warrant was issued ; appellant was arrested’thereon ; he was arraigned immediately, and was given until December 4th to plead.
Before the entry of his plea, appellant moved to quash the new information upon several grounds, which are here presented, viz : 1. That the court had no jurisdiction of the subject matter or of the person of the defendant, or to try him upon the information; 2. That the information was not filed within thirty days after defendant was held to answer ; 3. That defendant had not been brought to trial within sixty days after the filing of an information against him.
We shall dispose of the last two of these grounds at this
After overruling the appellant’s motion, the court entered a plea of not guilty for appellant, he standing mute, and the cause proceeded until January 17, when a trial was had which resulted in a verdict of guilty.
At every proper stage of the case appellant renewed his objections, and now presents them here. His allegations of error are based upon two propositions, viz : 1. That the quashing of an information on motion of the prosecutor, unless the reason of the court’s action be set forth in the order entered in the record, as required by Code Proc., § 1372, works the loss of jurisdiction of the court over the person of the defendant. 2. That, under the circumstances stated, it was error to allow the filing of a new information charging burglary generally.
Concerning Code Proc., § 1372, we are of the opinion that its provisions go no further than those cases where the prosecutor desires for some valid reason, ‘ ‘in furtherance of justice,” as the statute expresses it, to dismiss the charge against the accused without any intention to renew it in some other form. It is a statutory prohibition against the entry of a nolle prosequi at the mere instance of the prosecuting attorney, and without the assent of the court, and is followed by Code Proc.-, § 1373, abolishing the entry of nolle prosequi, and prohibiting the “discontinuation or abandonment” of a prosecution, except as provided for in the preceding section. If, in such a case, the record should show that the dismissal occurred because the court was of the opinion that the preliminary examination disclosed no probable cause for believing the accused to be guilty of any offense, it might be a protection to him against another in
Such cases clearly come under Code Proc., § 1315, which provides that when it appears at any time before j udgment that a mistake has been made in charging the proper offense, the defendant shall not be discharged, if there be good cause to detain him, but the court must recognize him to answer the offense shown. The only purpose of such a proceeding must be to allow the filing of a new information covering the actual offense. In this case the record is silent as to the causes which moved the court to the action taken. But we are bound to presume that sufficient cause existed, not only because of the presumption attaching to the act, but because the record says that the court was fully advised in the premises. It was entirely within the power of the appellant to preserve the facts upon which the court acted, either by a statement of facts or bill of exceptions, but that has not been done. If the ground for the motion was that the preliminary examination left it doubtful whether the acts constituting the alleged crime were committed during the period designated by. the phrase “in the nighttime,” and therefore rendered the outcome of atrial uncertain, that would be a proper ground for the proceeding taken; and from the face of the two informations it seems altogether likely that such was the reason for the motion in this case.
This case is entirely unlike that of State v. Van Cleve, 5 Wash. 642 (32 Pac. 461), where the information was merely amended, without re-verification, arraignment or plea, and the defendant was forced to proceed in a trial already begun. But even in that case the appellant was not ordered discharged.
J udgment affirmed.
Dunbar, C. J., and Hoyt and Scott, JJ., concur.