State v. Friedlander

• Decision Date: 03 November 1926
• Docket Number: 20096.
• Citation: 250 P. 453,141 Wash. 1
• Parties: STATE v. FRIEDLANDER.
• Court: Washington Supreme Court

250 P. 453

141 Wash. 1

STATE v. FRIEDLANDER.

No. 20096.

Supreme Court of Washington

November 3, 1926

Department 1.

Appeal from Superior Court, Grays Harbor County; Campbell, Judge.

Curtis Friedlander was convicted of contributing to the delinquency of a female child, and he appeals. Affirmed.

Philip Tworoger, of Seattle, and O. M. Nelson, of Montesano, for appellant.

Austin M. Wade, of Aberdeen, for the State.

FULLERTON J.

The appellant, Curtis Friedlander, was convicted in the superior court of Grays Harbor county by the verdict of a jury of the offense of encouraging, causing, and contributing to the delinquency of a female child of the age of 16 years. The appeal is from the judgment pronounced upon the verdict.

The offense, as it is denounced by the statute, is a misdemeanor and is an offense of which a justice court and the superior court have concurrent jurisdiction. The offense, however, is punishable by a fine not exceeding $1,000, or by imprisonment in the county jail for not more than one year, or by both such fine and imprisonment--penalties which a justice of the peace is not empowered to impose to their full extent. Other statutes (Rem. Comp. Stat. §§ 1925-1928), provide that any justice of the peace, on complaint on oath in writing charging any person with the commission of any crime of which he has jurisdiction, shall issue a warrant for the arrest of such person, cause such person to be brought before him and put upon his trial, that on such trial either the state or the defendant may demand a jury, and that such justice or jury, if they find the defendant guilty, shall assess his punishment; 'or if, in their opinion, the punishment they are authorized to assess is not adequate to the offense, they may so find, and in such a case the justice shall order such defendant to enter into a recognizance to appear in the superior court of the county, * * * and shall proceed as in proceedings by a committing magistrate.' Section 1928.

In this instance the appellant was first arrested for the offense of which he was finally convicted on a complaint filed with the justice of the peace of Aberdeen precinct in Grays Harbor county. On being brought before that officer he entered a plea of not guilty to the charge and demanded a change of venue to another justice of the peace. On the demand the venue was changed to the justice of the peace of Cosmopolis precinct in the same county. In due course the appellant was put upon trial for the offense before the last named justice of the peace, neither party having demanded a jury. At the conclusion of the evidence the justice announced that he found the appellant guilty, and further announced that, in his opinion, the punishment he was authorized to assess was not adequate to the offense, and thereupon bound the appellant over to answer in the superior court for the offense, proceeding as in the case of a committing magistrate. In the superior court an information was filed against the appellant, embodying the charge substantially in the language of the charge in the justice court.

One of the pleas interposed to the information in the superior court was the plea of former jeopardy. The plea was overruled by the trial court, and its action in so doing furnishes the basis for the first of the errors assigned for reversal in this court. It is contended that the appellant was in jeopardy for the offense with which he is charged because of the trial entered upon in the justice court, and that it is a violation of article 1, § 9, of the state Constitution to again put him upon trial for the same offense in the superior court. Since the justice court followed the provision of the statute in the course it pursued, it is at once apparent that to sustain the contention we must hold the statute to be in violation of the Constitution. This we are not inclined to do. The statute is dual in its nature. It permits a justice court in one and the same proceedings to sit in the capacity of a trial court and as a committing magistrate, and to determine whether it will act in the one capacity or the other after the evidence against the accused is heard. If it concludes after hearing the evidence that the punishment it is empowered to impose is adequate to the offense, it may proceed as a court and inflict the punishment. If, on the other hand, it concludes after hearing the evidence that the punishment it is empowered to impose is inadequate to the offense, it may proceed as a committing magistrate. Plainly, it was the view of the lawmaking body that jeopardy should attach, or should not attach, at the stage of the proceeding when it was necessary to make the determination, not at the time the examination was entered upon.

We see no reason why this is not within the constitutional power of the Legislature. It can undoubtedly vest in a justice court the power to try certain classes of offenses and enter a judgment thereon which will have all of the effect of jeopardy. It can likewise vest in that court the power to inquire whether an offense has been committed, whether the accused has committed that offense, and authorize it to bind the accused over to answer in a court having jurisdiction to try and bunish the offense without subjecting the accused to jeopardy. Since it may authorize the doing of these things in separate proceedings, we see no very substantial reason why it cannot combine the two, and we hold that it may do so.

The cases directly bearing upon the question seem not to be many. The only one precisely in point that has been called to our attention is Stoner v. State, 7 Ind. App. 620, 35 N.E. 133. The state of Indiana has a...