82 Wash. 477 | Wash. | 1914
On August 10, 1909, the defendant in this case was charged by information with the crime of burglary in the first degree. The case was brought on for trial on October 29, 1909, and resulted in a verdict of guilty of burglary in the second degree. From the judgment entered upon the verdict, an appeal was prosecuted, which resulted in a reversal. State v. Miller, 61 Wash. 125, 111 Pac. 1053, Ann. Cas. 1912 B. 1053. On February 15, 1911, the remittitur from this court was filed in the office of the clerk of the superior court. On September 30, 1912, upon the application of the prosecuting attorney, the cause was set for trial on October 29, 1912. Counsel for the defendant objected
The only error assigned is that, after the judgment of dismissal had once been entered, the court was subsequently without jurisdiction to try the cause. The question then is whether the state had the right to appeal from such judgment?
The general rule is that the state in a criminal case has no right to appeal from an adverse judgment unless such right is given by statute. United States v. Sanges, 144 U. S. 310; State v. Johnson, 24 Wash. 75, 63 Pac. 1124.
By Rem. & Bal. Code, § 1716 (P. C. 81 § 1183), the state is given the right to appeal in a criminal case 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 in some other material error in law not affecting the acquittal of' the prisoner on the merits.” By this statute the state may appeal when the error complained of is one of law not affecting the acquittal of the prisoner on the merits. The error which inhered in the judgment of dismissal was as to the interpretation of Rem. & Bal. Code, § 2312 (P. C. 135 § 119), which provides that the defendant, when his trial has not been postponed upon his own application, shall be brought to trial within sixty days after the indictment is found or the information filed, unless good
The judgment will be affirmed.
Crow, C. J., Mount, Ellis, and Fullerton, JJ., concur.