State v. Armstrong

• Decision Date: 05 July 1902
• Citation: 69 P. 392,29 Wash. 57
• Court: Washington Supreme Court
• Parties: STATE v. ARMSTRONG.

69 P. 392

29 Wash. 57

STATE v. ARMSTRONG.

Supreme Court of Washington

July 5, 1902

Appeal from superior court, Chehalis county; Mason Irwin, Judge.

A. A Armstrong was convicted of assault, and appeals. Affirmed.

W. H. Abel and A. M. Abel, for appellant.

J. A Hutcheson, for the State.

MOUNT J.

Appellant was convicted of assault, and from a judgment imposing a fine he appeals. On June 12, 1901, after a preliminary examination, appellant was bound over to appear before the superior court of Chehalis county to answer a charge of assault with a deadly weapon. On July 11, 1901, an information was filed charging appellant with that offense. On October 4, 1901, upon motion of appellant, the action was dismissed by the court, and the defendant discharged, for the reason that the cause had not been brought to trial within 60 days after the filing of the information. Thereafter, and on the same day, a new information was filed charging the same offense. Appellant moved to quash this last information upon the ground that the same was filed more than 30 days after the transcript of the preliminary examination was filed. This motion was denied, and a plea of not guilty entered, and a trial and conviction of assault followed. A judgment imposing a fine of $150 and costs was thereupon entered. A cost bill amounting to $159.30 was subsequently filed. Included in the cost bill were the following items: Clerk's costs, $9.45 sheriff's fees, $11.85; jury fee, $12. Appellant moved to strike these items from the cost bill, and the motion was denied. The errors relied upon are: (1) In denying the motion to quash the information; (2) in admitting cross-examination of defendant as to certain difficulties previously had; and (3) in denying the motion to retax costs.

1. The statute expressly provides at section 6916 2 Ballinger's Ann. Codes & St., that the order of dismissal, under the sections by authority of which the appellant was dismissed, shall not be a bar if the offense charged be a felony. The offense charged in the first information was felony. The offense charged in the information upon which appellant was tried was also felony. The prosecuting attorney was authorized to file it at any time within the period of the statute of limitations. The effect of the dismissal in the case was to release the defendant from the costs of the prosecution up to that time, and to discharge him from custody, or release his bail. The filing of the new information was the commencement of a new action for the same offense. The fact that the jury returned a verdict of guilty of a misdemeanor would not affect the offense charged, so as to make the former dismissal a bar to the action. The statute reads: 'But it is not a bar if the offense charged be a felony.' The offense charged is the guide for the court, and not the verdict rendered upon a trial of the offense charged. It was, therefore, not error to deny the motion to quash, or to overrule the demurrer, or to deny the motion for a directed verdict, or to deny the motion in arrest or judgment; all of which motions were based upon the fact that the verdict rendered found the defendant guilty of a misdemeanor.

2. Upon the trial, while defendant was a witness in his own behalf he was asked the...