State v. Deloria

• Decision Date: 05 May 1924
• Docket Number: 18167.
• Citation: 129 Wash. 497,225 P. 405
• Court: Washington Supreme Court
• Parties: STATE v. DELORIA.

225 P. 405

129 Wash. 497

STATE v. DELORIA.

No. 18167.

Supreme Court of Washington, En Banc.

May 5, 1924

Appeal from Superior Court, Thurston County; Wilson, Judge.

Truman George Deloria was convicted of bigamy, and he appeals. Affirmed by divided court.

Frank S. Carroll, of Tacoma, for appellant.

Roscoe R. Fullerton, of Olympia, and Nat. U. Brown, of Yakima, for the State.

BRIDGES J.

In August, 1922, the prosecuting attorney of Pierce county Wash., by information, charged the appellant with bigamy. Somewhat more than 60 days thereafter this cause was dismissed, because the prosecuting attorney was of the opinion that the Pierce county court did not have jurisdiction. On October 11, 1922, and immediately following the appellant's discharge under the Pierce county information, he was arrested upon a like information made by the prosecuting attorney of Thurston county. He pleaded not guilty, waived a jury, and was ready to proceed to trial. His case was not called, however, until December 4, 1922, which was more than 60 days following the filing of the information. At that time the prosecuting attorney informed the court that he had been unable to procure his main witness, who was to come from the state of Michigan, and was not prepared to go to trial, and asked for a continuance. This the court refused, and on motion of the appellant dismissed the case and discharged him. On the same day the prosecuting attorney of Thurston county filed a second information, which was substantially the same as the previous one, and charging the same crime, and under it the appellant was again arrested, and was brought to trial in about 30 days. Before the case was called the appellant moved the court to dismiss the case under the second information and discharge him, on the ground that he had been held without trial under the previous information for more than 60 days and the cause upon that information had been dismissed. The court denied this motion. The case was then tried before a jury, and the appellant was convicted and sentenced. From the time of his first arrest in Pierce county to the time of his final trial and conviction appellant was held in jail.

The first question to be determined is whether under the circumstances stated the trial court was in error in not dismissing the information upon which conviction was finally had. Section 22, article 1, of our Constitution provides that in criminal prosecutions the accused shall have the right to a speedy public trial by an impartial jury in the county in which the offense is alleged to have been committed. Section 2312, Rem. Comp. Stats., reads as follows:

'If a defendant indicted or informed against for an offense, whose trial has not been postponed upon his own application, be not brought to trial within sixty days after the indictment is found or the information filed, the court shall order it to be dismissed, unless good cause to the contrary is shown.'

Section 2315, Rem. Comp. Stats., reads as follows:

'An order dismissing a prosecution under the provisions of sections 2311, 2312, or 2314 shall bar another prosecution for a misdemeanor or gross misdemeanor where the prosecution dismissed charged the same misdemeanor or gross misdemeanor but in no other case shall such order of dismissal bar another prosecution.'

Sections 2311 and 2314 mentioned in the last quotation are not pertinent to the inquiry here. The substance of the sections quoted has been a part of the statutory law of this state for many years. See sections 1369, 1374, 2 Hill's Code.

A reasonable construction of the two sections quoted is that a dismissal of an information, because the defendant has not been brought to trial within the 60-day period, will bar any further prosecution for the same offense, provided it is a misdemeanor or gross misdemeanor, but will not, as a matter of course, bar further prosecution for a felony. Doubtless the purpose of the legislative act requiring persons charged with crime to be brought to trial within 60 days, unless good cause be shown, was to forestall any possible abuse by indefinitely holding persons charged with crime without a trial. Under these statutes the courts and prosecuting attorneys do not lose their power or jurisdiction over a person charged with a felony simply because the person so charged was not brought to trial on a previous information within the statutory 60-day period. We have so held in a number of cases. State v. Caldwell, 9 Wash. 336, 37 P. 669; State v. Armstrong, 29 Wash. 57, 69 P. 392; State v. Lewis, 31 Wash. 75, 71 P. 778; State v. Hansen, 10 Wash. 235, 38 P. 1023; State v. Seright, 48 Wash. 307, 93 P. 521; State v. Burns, 54 Wash. 113, 102 P. 886; State v. Alexander, 65 Wash. 488, 118 P. 645; State v. Wickstrom, 92 Wash. 503, 159 P. 753. It is true that not all of these cases directly discuss the question under consideration here, but they all either expressly hold that a second information, charging the same as the first, if it is a felony, may be filed and trial had thereunder, or assume, without discussion, such to be the law.

It would appear that in the case of State v. Caldwell, supra, the question was expressly decided in accordance with our holding here.

In State v. Armstrong, supra, the defendant was charged by information with an assault with a deadly weapon. Later this case was dismissed by the court because it had not been brought on for trial within 60 days after the filing of the complaint. Thereafter a new information was filed, charging the same offense. We said:

'The statute expressly provides at section 6916, Bal. Code, that the order of dismissal, under the sections by authority of which the appellant was dismissed, shall not be a bar if the offense charged be a felony. * * * The offense charged in

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