64 Wash. 47 | Wash. | 1911
Appeal from an order of dismissal upon sustaining a plea of former jeopardy. The facts upon which the court below based its ruling are these; On August 8, 1910, an information was filed against respondent, charging him with a violation of the adulterated food act, as found in Laws 1907, p. 478, ch. 211 (Rem. & Bal. Code, § 5453 et seq.). The offense charged was under subdivision 6 of § 3 (Id., § 5455), in selling “a quantity of veal, which said veal was then and there wholly the product of a filthy, decomposed, and putrid animal substance, to wit, a calf unfit for food.” Upon this information, respondent was arraigned
The state supports its position under Rem. & Bal. Code, § 2316, providing that,
“No order of dismissal or directed verdict of not guilty on the ground of a variance between the indictment or information and the proof, or on the ground of any defect in such indictment or information, shall bar another prosecution for the same offense. Whenever a defendant shall be acquitted or convicted upon an indictment or information charging a crime consisting of different degrees, he cannot be proceeded against or tried for the same crime in another degree, nor for an attempt to commit such crime, or any degree thereof;”
while respondent contends the proper rule to be applied is found in Rem. & Bal. Code, § 2315, providing:
“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.”
“The court may, either upon its own motion or upon application of the prosecuting attorney, and in furtherance of justice, order any criminal prosecution to be dismissed; but in such case the reason of the dismissal must be set forth in the order, which must be entered upon the record. No prosecuting attorney shall hereafter discontinue or abandon a prosecution except as provided in this section.”
Reading sections 2314 and 2315 together, it is plain the dismissal there referred to is where it is the expressed purpose and intention of the prosecuting attorney, for the reasons given in the order, to “hereafter discontinue or abandon a prosecution,” and then such dismissal operates as a bar only when the same misdemeanor is charged in a second information. In other words, having expressly indicated a discontinuance and abandonment of the prosecution and permitted the defendant to go hence, the state may not thereafter withdraw such discontinuance or abandonment and again subject the defendant to a trial upon the same misdemeanor. It is manifest that this record discloses no intention on the part of the prosecuting attorney to discontinue or abandon this prosecution. On the contrary, it shows an avowed intention to continue the prosecution and subject the defendant to a trial for his alleged unlawful act, by making the dismissal and leave to file a second information parts of the same record, and setting forth in the moving papers the particular offense to be charged against the defendant in the second information, and the ultimate fact he was prepared to prove to sustain the charge. Neither was the offense charged in the second information the same misdemeanor charged in the first information. True, the misdemeanor charged in each information was of the same name or character,—“selling an adulterated
Respondent cites State v. Durbin, 32 Wash. 289, 73 Pac. 373, as supporting his contention that the order of dismissal is a bar. It will be noted that the first information in that case charged the defendant with assault and battery, a misdemeanor. Subsequently a second information was filed, reciting the same facts, and charging an attempt to commit mayhem, a felony. The first information was then dismissed, and the defendant’s plea of former acquittal being denied, he was placed on trial and convicted of assault and battery. It was held that the dismissal of the charge of assault and battery was a bar to a second prosecution for the same offense, and that the defendant could not be tried upon an information charging a greater offense, including the lesser, and be convicted of the lesser offense, after his dismissal had operated as an acquittal of the lesser offense. That holding in no way conflicts with our present view. The criminal act consisted in the doing of the prohibited thing, not in the name given to
Respondent’s next contention in support of the judgment is based upon his definition of the word “proof,” as used in Rem. & Bal. Code, § 2316; the argument being that there could be no variance between the information and the proof until the “proof” had been established by the state’s evidence; and assuming the right of dismissal, it could only be granted after the introduction of the testimony on the part of the state showing the variance. The law never requires the doing of a vain or useless thing, and it does not appeal to us as sound to say the state could dismiss only after the introduction of its evidence and the incurring of needless expense in order to establish its contention of a variance. Such a requirement would result in benefit neither to the state nor the defendant, except it be to inform the defendant of the character and sufficiency of the evidence relied upon by the state to secure a conviction, which might be a benefit in fact but not in law. It will be admitted that, in a restricted and technical sense, there is a difference between the words “evidence” and “proof;” evidence .being the medium through which proof is established, and proof being the effect of evidence rather than the evidence itself. People v. Beckwith,
“But as in common use the end is often confounded with the means, so in language ‘proof’ is often used as a synonym with ‘evidence.’ ” Hill v. Watson, 10 S. C. 268.
And “in ordinary language the terms are used interchangeably, and the word ‘proof’ is used when ‘evidence’ only is meant. ” Perry v. Dubuque Southwestern R. Co., 36 Iowa 102. We think this is the sense in which the word “proof” is used in this statute, and that it was not intended that the state must proceed until evidence becomes proof before it can declare a variance, but that the prosecuting attorney owes a duty, to both the state and the defendant, to dismiss a prosecution when he is honestly satisfied from the facts within his knowledge that he has charged the wrong act. The defendant can be tried but once for the same act. Neither should the state be forced to put a defendant upon trial for an act which it is satisfied he has not committed, in order to thereafter be in a position to prosecute him for the act he has committed.
For these reasons we are of the opinion that the prosecuting attorney was entitled to set forth a variance and obtain leave to dismiss and proceed anew; and that having done so, the dismissal of the first information was not a bar to a prosecution under the second.
The judgment is reversed, and the cause remanded for further proceedings.
Dunbar, C. J., Crow, Ennis, and Chadwick, JJ., concur.