State v. Burns

• Decision Date: 10 July 1909
• Parties: STATE v. BURNS.
• Court: Washington Supreme Court

102 P. 886

54 Wash. 113

STATE v. BURNS.

Supreme Court of Washington

July 10, 1909

Department 2. Appeal from Superior Court, Kittitas County; Ralph Kauffman, Judge.

Fred Burns was informed against for gaming, and, from a judgment of dismissal, the State appeals. Reversed, with directions to sustain the State's demurrer to defendant's plea of former acquittal.

C. R Hovey and H. W. Hale, for the State.

RUDKIN C.J.

On the 21st day of April, 1908, a complaint in writing was filed before one of the justices of the peace of Kittitas county charging that the defendant herein, Fred Burns, 'did on or about the 21st day of April, 1908, in the county of Kittitas and state of Washington, unlawfully conduct a gambling game, to wit, a game of draw poker, in the Senate saloon, in Ellensburg said county and state contrary to the statute,' etc. On the following day this complaint was dismissed on motion of the prosecuting attorney in order that an information might be filed directly in the superior court. On the date of dismissal of the complaint filed before the justice of the peace the prosecuting attorney filed an information in the superior court charging that the defendant herein, Fred Burns, 'did in the county of Kittitas and state of Washington, in a certain building situate upon lot five (5) in block fifteen (15) in the original town of Ellensburg, known as the Senate saloon, on or about the twenty-first day of April, A. D. one thousand nine hundred and eight, unlawfully and feloniously conduct and carry on an open game of draw poker.' On the 19th day of June 1908, the last-mentioned information was dismissed on motion of the prosecuting attorney, and the defendant was held to await the filing of a new information. Thereafter a second information was filed charging that the defendant 'did in the county of Kittitas and state of Washington, on or about the twenty-first day of April, A. D. one thousand nine hundred and eight, willfully, unlawfully, and feloniously conduct and carry on a game of draw poker, then and there being a game played and operated with cards and chips and money, said chips then and there being representative of value; and that said game was played, carried on and conducted in a certain building situated upon lot five (5) in block fifteen (15) in the original town of Ellensburg, known as the Senate saloon, the same being a place where persons then and there resorted for the purpose of playing said game.' To this information the defendant pleaded the dismissal before the justice of the peace, and the dismissal of the first information filed in the superior court in bar, setting forth in extenso the records in both courts. The state demurred to the plea of former acquittal, but its demurrer was overruled. The state then elected to stand upon its demurrer, and, from a judgment of dismissal, the present appeal was prosecuted.

It seems to us that the plea of former acquittal was bad for two reasons: First, because the information to which the plea was interposed charged a felony under the act of February 16 1903 (Laws 1903, p. 63, c. 51), and in such cases the dismissal of a previous complaint or information without trial is no bar to another prosecution. It is said in the appellant's brief that the demurrer was overruled on the authority of State v. Durbin, 32 Wash. 289, 73 P. 373, but in commenting on that decision in the latter case of State v. Campbell, 40 Wash. 480, 82 P. 752, the court said: 'What was really decided in that case was that where a party had been charged with assault and battery, and a nolle prosequi had been entered to such information for the purpose of allowing the prosecuting attorney to file an information charging the defendant with mayhem based upon the same state of facts, and where, upon the trial on the last information, the defendant was found guilty of assault and battery, such a proceeding was equivalent to trying the defendant twice for the same offense. But it will not do to lay down a rule to the effect that in a case where, through...