State v. Bringgold

• Citation: 40 Wash. 12,82 P. 132
• Court: Washington Supreme Court
• Decision Date: 06 September 1905
• Parties: STATE v. BRINGGOLD.

82 P. 132

40 Wash. 12

STATE v. BRINGGOLD.

Supreme Court of Washington

September 6, 1905

Appeal from Superior Court, Spokane County; William E. Richardson Judge.

Otto Bringgold was convicted of tampering with a witness, and appeals. Affirmed.

Peacock & Wells and E. H. Sullivan, for appellant.

R. M Barnhart and A. J. Langhon, for the State.

FULLERTON J.

On December 18, 1903, a complaint was filed in the justice's court of Spokane precinct before J. D. Hinkle, justice of the peace, charging the appellant with the offense of tampering with a witness. A warrant of arrest was issued on the complaint, and the appellant was arrested thereon and brought before the justice, when the offense with which he was charged was made known to him. Being called upon to plead to the charge, the appellant entered a plea of guilty, whereupon the justice continued the case until the next day for the purpose of examining witnesses as to the circumstances under which the offense was committed. On the next day, at the time appointed, the appellant appeared with counsel, and moved the court for leave to withdraw his plea of guilty, stating that the same was entered by mistake, and that he desired a trial upon the merits of the accusation against him. The justice refused to permit the appellant to withdraw his plea, and thereupon examined a witness as to the circumstances of the offense, at the conclusion of which he adjudged the appellant guilty on his plea of guilty, and sentenced him to jail for 10 days and to pay a fine of $70 and costs. The appellant in open court gave notice of appeal to the superior court, and requested the justice to fix the amount of bail he would require to supersede the judgment pending such appeal. The jestice refused to fix bail, giving as his reason therefor that an appeal did not lie from a judgment of conviction had on a plea of guilty. The appellant thereupon applied for and obtained a writ of review from the superior court of Spokane county commanding the justice to make return of a transcript of the record and proceedings to that court that the same might be reviewed as by law provided. On this return being made, the appellant moved the court to require the justice to make a more complete return, averring by affidavit that the return made was incomplete and false. The state at the same time moved to quash the writ. These motions came on for hearing together, when the court denied the appellant's motion, but granted that of the state, holding that the remedy of the appellant for any error committed by the justice of the peace was by appeal. The appellant gave notice of appeal to the Supreme Court from these orders, and the court, at his request, fixed the amount of the bond required to be given in order to perfect the appeal; the appeal, however, seems never to have been perfected. While these proceedings were being had, the justice of the peace transmitted to the superior court a transcript of the record on the appeal from the judgment of conviction entered in his court, and, on the return day fixed by him, the appellant appeared, and asked leave to withdraw his plea of guilty to the complaint, and plead anew thereto in the superior court. This motion the court granted, whereupon the appellant demurred to the complaint on the ground that it did not state facts sufficient to constitute a crime, which demurrer the court sustained, holding the defendant to appear on a future day certain to abide the order of the court. The state thereupon asked leave to file an information against the defendant charging him with the same offense. On leave being granted, an information was filed, to which the appellant pleaded not guilty, and a trial was had thereon before a jury, resulting in a judgment of conviction. This appeal is from that judgment.

The first three errors assigned refer to the orders of the court leading up to the filing of the information. It is contended that the court erred in overruling the appellant's motion for a further and more complete return to the writ of review, in quashing the writ of review, and in not sending the case back to the justice of the peace with instructions to allow the appellant to withdraw his plea of guilty entered to the complaint, and in not sending the case back with instructions to grant the appellant's appeal therefrom. But these are questions not presented by the record before us. Had appellant perfected his appeal from the order quashing the writ of review, this court would probably have reviewed them on that appeal, but it cannot review them on the present appeal. A writ of review under our practice is an independent proceeding, in which a final judgment can be entered, and from which an independent appeal may be taken. The writ, while it may be sued out in aid of other proceedings, never becomes so far a part of such other proceedings that it may be reviewed on an appeal taken from a judgment entered therein. So, whether or not there was error in quashing the writ, and refusing to make the several orders demanded, we have no power to inquire on this appeal.

It is next assigned that the court erred in assuming jurisdiction over the offense after having sustained a demurrer to the complaint brought up from the justice's court. It is said that the superior court's jurisdiction was appellate only, and, when it was determined that the justice's judgment was erroneous because entered on an insufficient complaint, the superior court was without authority to proceed further with the case, and should have dismissed it or remanded it to the justice's court for further proceedings. Such, however, is not the rule. An appeal of a criminal case from a justice of the peace to the superior court vests the superior court with jurisdiction to proceed in the case as if it had been originally commenced in that court. It tries the case de novo, and pronounces such judgment as it deems the case warrants. If it finds that the complaint filed in the justice's court fails to state facts sufficient to constitute a crime, it has jurisdiction either to discharge the defendant, allow the complaint to be amended by the filing of a new complaint, or it may direct that an information be filed against him charging him with that offense which it appears to the court he has committed. In either event the cause proceeds as if originally commenced in the superior court. Here, the superior court directed an information to be filed, and in so doing acted within its jurisdiction.

It is next assigned that the court erred in permitting the state to show that the appellant had pleaded guilty to the complaint filed against him in the justice court. It is argued that this plea became functus officio after it was withdrawn, and was no longer admissible as evidence. There are cases which maintain this rule, but we think the better rule is the other way. It is generally held that extrajudicial confessions, voluntarily made by a defendant, are admissible against him as evidence tending to show the fact confessed, whether or not the confession itself, or the matter of the confession, be afterwards denied. The withdrawal of a plea of guilty and the entry of a plea of not guilty is in effect only a denial of facts that were at one time admitted, and it would seem that any rule that would admit in evidence a confession made out of court ought to admit one made in court. Such a plea is not, of course, conclusive evidence against the defendant. It is competent evidence merely, its weight and sufficiency being for the jury. Terry v. State, 39 Tex. Cr. R. 628, 47 S.W. 654; Commonwealth v. Brown, 150 Mass. 330, 23 N.E. 49; Murmutt v. State (Tex. Cr. App.) 67 S.W. 508; People v. Gould, 70 Mich. 240, 38 N.W. 232, 14 Am. St. Rep. 493; 12 Cyc. 460.

In this connection it is further urged that the justice of the peace was...