State v. Callahan

• Decision Date: 12 April 1922
• Docket Number: 16802.
• Citation: 119 Wash. 535,206 P. 13
• Court: Washington Supreme Court
• Parties: STATE ex rel. ANDERSON v. CALLAHAN, Sheriff.

206 P. 13

119 Wash. 535

STATE ex rel. ANDERSON v. CALLAHAN, Sheriff.

No. 16802.

Supreme Court of Washington, En Banc.

April 12, 1922

Original application for habeas corpus by the State, on relation of Alfred Anderson, against A. L. Callahan, as Sheriff of Whatcom County, Wash. Writ denied.

Per Holcomb, Mackintosh, Hovey, and Tolman, JJ. Parker, C.J dissenting.

Sather & Livesey, of Bellingham, and H. C. Barney, of Anacortes, for relator.

Loomis Baldrey, of Bellingham, for respondent.

HOLCOMB J.

This is an original application for a writ of habeas corpus. The relator is restrained of his liberty in the county jail of Whatcom county, pursuant to a warrant of arrest based upon information charging him with the crime of murder in the first degree, alleged to have been committed July 28, 1921. He has been in custody in jail since that date. A demurrer to the information was filed by him, and submitted to the trial court on August 18, 1921, and a decision rendered thereon August 26, the order on which was as follows:

'On this 26th day of August, 1921, this cause came regularly on for hearing by the court on demurrer, and, after hearing said demurrer and the argument of counsel, and the court being fully advised in the premises, it is by the court ordered that the said demurrer be, and the same is hereby sustained, and the prosecuting attorney is hereby permitted to file a new information, to which the state excepts, and its exception is noted.'

The prosecuting attorney elected to stand upon the information and appeals from the order sustaining the demurrer.

Relator contends that, having elected to stand upon the information and appeal from the order, the order has become final, and the prisoner is entitled to his discharge. Bishop's Criminal Procedure (4th Ed.) vol. 1, p. 640, is quoted as follows:

'When the judgment is for defendant on demurrer to the indictment, the judgment is that he be dismissed and discharged from the indictment.'

It is therefore insisted that, the order having become final, the judgment of the court, to the effect that the prisoner was being held on a defective information, entitled him to his liberty, since the state elected to appeal. It is admitted, however, that the lower court had a right to refrain from discharging relator from custody until the state had an opportunity to file a new and proper information.

Respondent and the prosecuting attorney rely upon the statute (Rem. Code 1716, subd. 7), which reads as follows:

'But an appeal shall not be allowed to the state in any criminal action, except when the error complained of is in setting aside the indictment or information, or in arresting the judgment on the ground that the facts stated in the indictment or information do not constitute a crime, or is some other material error in law not affecting the acquittal of the prisoner on the merits.'

Against this relator urges that no provision is found in our Criminal Code nor in the statutes on appeal which provides for a stay of judgment in the lower court in a criminal case upon appeal by the state, and cite State v. Fenton, 30 Wash. 325, 70 P. 741, and State ex rel. Shattuck v. French, 82 Wash. 330, 114 P. 28, where we held in effect that the statutory provisions for a stay in either a civil or criminal action are found in the statutes, and neither contemplate a stay in a case of this kind. See, also, State v. Miller, 72 Wash. 154, 129 P. 1100; State v. Poole, 64 Wash. 47, 116 P. 468. In the Shattuck Case, supra, this language is used:

'The Legislature, by its failure to provide for a stay of the order discharging a prisoner in any case on an appeal by the state, has, in effect, declared the remedy by appeal an adequate remedy notwithstanding the prisoner's release. If we entertain the writ of review in this case on the ground of inadequacy of the state's remedy by appeal, then we must, for the same reason, entertain it in every case where a prisoner is discharged on demurrer to an information, or for lack of jurisdiction, or for any other reason involving 'material error in law not affecting the acquittal of a prisoner on the merits.' The Legislature, by giving the right of appeal in all such cases, must be presumed to have considered that remedy adequate in at least some case to which it would apply.'

It will be observed that the language used in that case was used with reference to the adequacy of the state's remedy by appeal in such a case, and not particularly to the prisoner's right to release. That case was one where the prisoner has not been brought to trial within the statutory period of 60 days after the filing of the charge against him, and the trial court had decided that the prisoner should be released for the reason that the crime charged was a misdemeanor, and the prisoner had been confined in jail for more than 60 days, and that the state was barred by statute from any further prosecution for the same offense.

Section 2103, Rem. Code, provides:

'If the court direct that the case be resubmitted, the defendant, if already in custody, must so remain, unless he be admitted to bail; or if already admitted to bail, or money has been deposited instead thereof, the bail or money is answerable for the appearance of the defendant to answer a new indictment or information.' Section 2310, Rem. Code, provides:

'Every person charged with an offense, except that of murder in the first degree, where the proof is evident or the presumption great, may be bailed by sufficient sureties.'

Upon an application by relator to be admitted to bail in the court below, the trial court refused to admit him to bail, stating, as shown in the return to the writ herein, that the accused failed to show that the crime charged comes within the provisions of the statute, being section 9141, Pierce's Code (section 2310, Rem. Code).

The effect of the court's order was to resubmit the case as provided in section 2103, Rem. Code.

Section 2106, Rem. Code, provides:

'If the demurrer is sustained because the indictment or information contains matter which is a legal defense or bar to the action, the judgment shall be final, and the defendant must be discharged.'

But the trial court specifically stated, as shown in the answer of respondent to relator's supplemental petition, filed herein, that the demurrer was not sustained upon that ground, but was sustained upon the ground that the information does not substantially conform to the requirements of the Code; or that more than one crime is charged under the provisions of section 2105, Rem. Code.

The trial court, at the hearing on the application to discharge the prisoner, suggested that the appeal was premature and without right, and that the accused should move in this court to dismiss the appeal. Relator also alleged in his original petition that the appeal was premature and without right; and it may be that it is, since there has been no final judgment of dismissal granted in the case, and nothing but an order sustaining the demurrer to the information. That matter, however, is not for us to decide at this time.

The simple situation here is that the trial court has ordered the resubmission of the case upon another information. Meantime the relator is being held under a warrant issued under an information the validity of which has not yet been finally tested; and the statute heretofore quoted required that the accused, being in custody and not for a prima facie bailable offense, must so remain unless he be admitted to bail upon a proper showing.

The judges of the superior court are among the conservators of the peace. They may commit persons before them when the occasion for it judicially appears. Without the aid of statute our judges have the same statutory authority over this matter as the English. It was so held by Chief Justice Marshall in United States v. Burr, 1 Burr's Trial, 79, F. Cas. No. 14693; Bishop's New Criminal Procedure, § 229.

Our Criminal Code does not contemplate the discharge of a defendant in a criminal prosecution unless the prosecution is to be dismissed.

Section 2313, Rem. Code, reads as follows:

'Whenever the court shall direct any criminal prosecution to be dismissed, the defendant shall, if in custody, be discharged therefrom, or if admitted to bail, his bail shall be exonerated. * * *'

In Re Graves, 61 Ala. 381, in a hearing upon an application for mandamus to compel the lower court to discharge a prisoner, the relief was denied, and the court said:

'We cannot assent to the proposition, that whenever a demurrer is sustained to an indictment, or it is quashed or otherwise vacated, the person against whom it was preferred is, in every such case, to be discharged. The presentment of a grand jury is always sufficient authority for the issue of a capias or warrant of arrest for the person accused, and for detaining him in custody, if not enlarged upon bail, to answer for the offense charged. The law, upon such a finding of the grand jury, makes it the duty of a court to hold him for trial upon the indictment. * * * When the indictment is quashed for a reason not touching the question of their guilt or innocence, they cannot be considered as vindicated; nor is the effect of the presentment of the grand jury so destroyed, that, looking both to the safety of the public and the rights of individuals, it would be unjust to hold persons so accused of crime, bound to appear to answer another indictment therefor, free from the defects of the first. This is implied, indeed, by the provision of the statute, that the court may in such a case 'order another indictment to be preferred for the offense charged or intended to be charged,' either 'at the same or a subsequent term.' The authority to refer the matter again to a

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