State v. Campbell
| Citation | 82 P. 752,40 Wash. 480 |
| Parties | STATE v. CAMPBELL. |
| Decision Date | 14 November 1905 |
| Court | United States State Supreme Court of Washington |
Appeal from Superior Court, Chehalis County; Mason Irwin, Judge.
Joseph W. Campbell was convicted of assault with intent to kill, and appeals. Affirmed.
W. H. Abel and A. M. Abel, for appellant.
E. E Boner, for the State.
On August 3, 1904, an information was filed against the appellant, charging him with exhibiting a dangerous weapon in a rude, angry, and threatening manner, etc., in a crowd of two or more persons. On November 25, 1904, the prosecuting attorney filed a motion to quash this information, which motion was granted by the court, and an information was filed charging the defendant with an assault with intent to commit murder. The court certified that the said information was dismissed for the purpose of permitting the prosecuting attorney to file the latter information, and that the same facts and transactions were included in both informations and that each information was based on the same facts and transactions. Upon the filing of the last information the appellant filed a plea in abatement, introducing the first information and the dismissal of the same for the purpose of sustaining said plea. The plea in abatement was overruled the cause proceeded to trial, and a conviction was had upon the last information, and the defendant was sentenced to one year in the penitentiary.
The appellant contends that the court erred in refusing to dismiss this action and in failing to hold that the dismissal of the former criminal action constituted a bar. It is contended that exhibiting a dangerous weapon is a misdemeanor only, and that, under section 6916, 2 Ballinger's Ann Codes & St., the dismissal of the first information charging a misdemeanor was a bar to another prosecution for the same offense, and appellant relies upon the case of State v. Durbin, 32 Wash. 289, 73 P. 373, to sustain has contention. The statute is as follows: 'An order for dismissal as provided in this chapter is a bar to another prosecution for the same offense, if it be a misdemeanor; but it is not a bar if the offense charged be a felony.' The writer of this opinion did not indorse the construction placed by the court upon this statute in State v. Durbin, supra; but, even conceding the soundness of the doctrine announced in that case, it does not sustain the contention of the appellant in this. 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 inadvertence or misinformation of a prosecuting officer, a defendant has been charged with a misdemeanor--for instance, an assault and battery--and it afterwards eventuates...
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State v. McCollum, 28809.
... ... 687, 215 P. 56 ... In ... re Waugh, 32 Wash. 50, 72 P. 710, overruled by In re ... Bruen, 102 Wash. 472, 479, 172 P. 1152 ... State v. Durbin, 32 Wash. 289, 73 P. 373, overruled ... sub silentio by State v. Campbell, 40 Wash. 480, 82 ... P. 752, and expressly by State v. Wickstrom, 92 ... Wash. 503, 506, 159 P. 753 ... Griggs v. MacLean, 33 Wash. 244, 74 P. 360. See ... Rochester v. Seattle, R. & S. R. Co., 75 Wash. 559, ... 563, 135 P. 209, and New ... ...
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