State v. Alexander

• Citation: 118 P. 645,65 Wash. 488
• Court: Washington Supreme Court
• Decision Date: 01 November 1911
• Parties: STATE v. ALEXANDER.

118 P. 645

65 Wash. 488

STATE v. ALEXANDER.

Supreme Court of Washington

November 1, 1911

Department 1. Appeal from Superior Court, Spokane County; E. H Sullivan, Judge.

T. E Alexander was convicted as a habitual criminal, and he appeals. Affirmed.

F. W Girand, for appellant.

Robt. L. McWilliams and Geo. R. Lovejoy, for the State.

MOUNT J.

The defendant was informed against, tried, and convicted as an habitual criminal. After verdict, he filed a motion for a new trial, which motion was denied, and a life sentence was imposed. He has appealed from that judgment.

He makes two assignments of error, as follows: (1) That the court erred in denying his motion to dismiss the action before any evidence was offered, and (2) in denying the same motion made at the close of the state's case.

Appellant argues that he should have been tried within 5 days, under the provisions of section 2178, Rem. & Bal. Code; and in any event within 60 days after the information was filed. It appears that the information was filed on February 16, 1911. He was arraigned on March 11, 1911, when he tendered a plea of not guilty. He was tried on April 24, 1911. No motion for a dismissal appears to have been made prior to the beginning of the trial; it was made after the trial had actually begun. This information was filed under the provisions of section 2286, Rem. & Bal. Code. This statute was passed in 1909. It is a later statute than section 2178, which was passed in 1903. Both statutes appear to have some provisions in common. Section 2178 requires the trial to be held within five days, while section 2286 makes no such provision. If the latter statute has not superseded section 2178, it is clearly an independent statute, and, since no time is fixed for the trial, the general statute must govern. The trial, therefore, was not required to be held within five days. The defendant was not brought to trial within 60 days. The statute provides: 'If a defendant indicted or informed against for an offense, whose trial has not been postponed upon his own application, be not brought to trial within sixty days after the indictment is found or the information filed, the court shall order it to be dismissed, unless good cause to the contrary is shown.' Rem. & Bal. Code, § 2312.

The dismissal of a felony charge, however, is not a bar (section 2315, Rem. & Bal. Code), but another information may be immediately filed. This same question was involved in State v. Seright, 48 Wash. 307, 93 P. 521, where we said: 'But a dismissal under such circumstances does not operate as a bar to another prosecution for the same offense nor would a discharge compel the prosecuting officer to commence anew before a committing magistrate. On the contrary, the prosecuting attorney may file such an information in the court before which he was bound over to appear, at once upon the dismissal of the original proceeding, without violating any...