State v. Bell, 22566.

• Decision Date: 04 June 1930
• Docket Number: 22566.
• Citation: 157 Wash. 279,289 P. 25
• Parties: STATE ex rel. MILLER v. BELL, Superior Court Judge.
• Court: Washington Supreme Court

289 P. 25

157 Wash. 279

STATE ex rel. MILLER v. BELL, Superior Court Judge.

No. 22566.

Supreme Court of Washington

June 4, 1930

Department 2.

Original application for writ of review or prohibition by the State on the relation of Ervin Miller, against Ralph C. Bell, Judge of the Superior Court for Snohomish County.

Alternative writ quashed, and peremptory writ denied.

Anderson & Richards and Earl W. Husted, all of Everett, for relator.

Charles R. Denney, of Everett, for respondent.

HOLCOMB J.

This original proceeding is prosecuted by relator for the purpose of having a certain order of the superior court in a prosecution for bootlegging reviewed and annulled and further proceedings thereunder prohibited.

On April 7, 1930, an information was filed in the superior court for Snohomish county charging relator with the crime of bootlegging in two counts as follows:

'Count 1: He, the said Ervin Miller in the county of Snohomish state of Washington, on or about the 27th day of March, 1930, did wilfully, unlawfully and feloniously carry about with him, for the purpose of unlawful sale, a quantity of intoxicating liquor other than alcohol, to-wit: about one gallon of moonshine whisky.'

Count 2 alleged the same offense as count 1, except that the offense was alleged as of the 31st day of March, 1930, and that the carrying about for the purpose of unlawful sale of intoxicating liquor, other than alcohol, consisted of about five gallons of moonshine whisky.

Relator, by his attorneys, demurred to the information upon the ground that it did not substantially conform to the requirements of the laws of Washington; that more than one crime is charged; that counts 1 and 2 have been improperly joined and united in the information.

Thereafter the demurrer to the information was presented and argued to the trial court, which, by its order, overruled the demurrer, and the case was set for trial. Thereupon relator sued out an alternative writ herein.

Respondent has demurred and moved to quash the writ upon the ground that the facts set out in the petition and affidavit in support of the writ are not sufficient to warrant the issuance of the peremptory writ.

Relator does not question and there can be no argument but that the information alleges facts constituting offenses within the jurisdiction of the superior court for Snohomish county. The court also has undoubted jurisdiction over the person of relator. The only contention made by relator is that the information, being for the crime of bootlegging on two separate dates within the statutory period of limitations, is a continuing offense, and that only one count of bootlegging should be allowed to be maintained against him; in other words, it is argued that the prosecution has split one crime of bootlegging into as many different crimes as there are counts in the information.

We shall not anticipate the question of whether or not bootlegging is a continuing offense, for the reason that should the trial court err in deciding that question, relator has a plain, speedy,...