State v. Alberg
| Decision Date | 17 April 1930 |
| Docket Number | 21985. |
| Citation | 287 P. 13,156 Wash. 397 |
| Court | Washington Supreme Court |
| Parties | STATE v. ALBERG et al. |
Appeal from Superior Court, Lincoln County; W. M. Nevens, Judge.
Duggie Alberg and another were convicted of possession of whisky and they appeal.
Reversed and remanded.
R. M Dye, of Davenport, for appellants.
Joseph H. Johnston, of Davenport, for the State.
June 30, 1928, Duggie Alberg and Edwin Alberg, brothers, were each charged in the justice court with the crime of the unlawful possession of a half a pint of moonshine whisky. Both defendants, as shown by the records of the justice of the peace, plead guilty on this day, and each was given a sentence of sixty days in the county jail and a fine of $100. It was provided in the sentence that, if the fines and costs were paid, the jail sentence would be suspended. Soon after this the defendants employed an attorney, who gave notice of appeal in each case and filed a bond with the justice of the peace. At the time of sending the bond to the justice of the peace, the attorney wrote that officer a letter in which he directed the justice to prepare and certify a transcript of the proceedings to the superior court, and added that, in case the justice was not familiar with the matter of making up the transcript, he would be glad to assist him, or the justice might call upon the prosecuting attorney. After this nothing further was done until December 14, 1928, when the prosecuting attorney caused a transcript of the proceedings in the justice court to be filed in the superior court, and moved that the appeals be dismissed. The motion was based upon two grounds: First, that the appeals had not been diligently prosecuted; and, second, that since the defendants had pleaded guilty in justice court, they did not have a right of appeal to the superior court. The motion to dismiss was heard upon affidavits and resulted in a judgment dismissing the appeals, from which both defendants appeal.
The first question is whether the appeals were properly dismissed by the superior court because not diligently prosecuted. Whether an appeal should be dismissed for this reason is a matter which rests largely in the discretion of the trial court, and the judgment of that court will not be disturbed in the absence of a showing of abuse thereof. The burden of showing that the appeals were diligently prosecuted was on the appellants. State v. Tubbs, 138 Wash. 116, 244 P. 256; Tacoma v. Nelson, 151 Wash 106, 275 P. 64. Whether an appeal should be dismissed because not having been diligently prosecuted depends upon whether the time elapsing between the date of the appeal and the date of the motion to dismiss was longer than a reasonable time. State v. Buffum, 94 Wash. 25, 161 P. 832. In the present case, between the time when the appeals were taken and the motion to dismiss was made, no jury term of court had been held in Lincoln county. Had the transcript from the justice court been promptly filed in the superior court, the cases could not have been tried prior to the time that the motion to dismiss was made.
One of the reasons for sustaining the trial court in dismissing appeals in the cases of State v. Buffum, 94 Wash. 25, 161 P. 832, and State v. Koerner, 103 Wash. 516, 175 P. 175, was that in one of those cases it appeared that there had been three jury terms between the time when the notice of appeal was given and the motion to dismiss was made, and the other was in a county where a jury was in attendance every month.
This case, by reason of the fact that there had been no jury term subsequent to the appeal and prior to the motion to dismiss, is differentiated from the holdings in those cases. Since less than six months had elapsed and no jury term had been held in the county, at which the appellants could have been tried had the transcript from the justice court been promptly filed in the superior court, we are of the opinion that it whould not be held that the appeals were not diligently prosecuted, and the order of dismissal on this ground cannot be sustained.
The next question is whether the appeals were properly dismissed because the appellants pleaded guilty in the justice court. It is true that each of the appellants filed an affidavit in which he denied having pleaded guilty, but there were affidavits by the sheriff of the county, as well as two deputies, who were present at the time and who stated that the appellants, with full knowledge of what they were charged with, did in fact plead guilty. We accept the fact to be that in the justice court both of the appellants knowingly court both of the charge made against them. In State v Eckert, 123 Wash. 403, 212 P. 551, it was held that a plea of guilty before a justice of the peace precluded a right to appeal where there was no contention that the...
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Young v. Konz
...under which a guilty plea was made are raised, then appeal and de novo review can follow. State v. Eckert, supra; State v. Alberg, 156 Wash. 397, 287 P. 13 (1930); State v. Haddon, 179 Wash. 669, 38 P.2d 227 (1934); State v. Rose, supra. Finally, it would be a rare instance, indeed, where a......
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City of Seattle v. Filson
...held that a jury was properly denied where the offense was rowdy conduct and the maximum penalty was a $50 fine.3 In State v. Alberg, 156 Wash. 397, 287 P. 13 (1930), we said that the records of a justice court, which is not a court of record, are only prima facie correct and may be contrad......
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State v. Rose, 32366
...of the court, or the circumstances under which the plea was made, are raised. State v. Eckert, 123 Wash. 403, 212 P. 551; State v. Alberg, 156 Wash. 397, 287 P. 13; State v. Haddon, 179 Wash. 669, 38 P.2d 227. See, also, the cases cited in 24 C.J.S., Criminal Law, § 1563(a), notes 19, 20, p......
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...cases cited involve either no complaint, Orting v. Rucshner, 66 Wash.2d 732, 404 P.2d 983 (1965), or a defective one. State v. Alberg, 156 Wash. 397, 287 P. 13 (1930). The citation here was not defective. Ms. Green accepted it and agreed to appear. Hence, the court had jurisdiction over her......