State v. George, 12337.

• Court: United States State Supreme Court of Washington
• Writing for the Court: CHADWICK, J.
• Citation: 146 P. 378,84 Wash. 113
• Parties: STATE v. GEORGE.
• Decision Date: 11 February 1915
• Docket Number: 12337.

146 P. 378

84 Wash. 113

STATE
v.
GEORGE.

No. 12337.

Supreme Court of Washington

February 11, 1915

Department 1. Appeal from Superior Court, King County; J. T. Ronald, Judge.

Nick George, alias Tony John, was convicted of crime, and he appeals. Affirmed.

[84 Wash. 114] Thos. F. Murphine and Harry Sigmond, both of Seattle, for appellant.

John F. Murphy and Thos. J. L. Kennedy, both of Seattle, for the State.

CHADWICK, J.

Appellant was formerly convicted in the court below, and appealed to this court, where the judgment was set aside upon the ground that the information did not state facts sufficient to constitute a crime. State v. George, 79 Wash. 262, 140 P. 337. Our direction was that the case should be dismissed. Appellant was rearrested and put to trial upon a sufficient information. From a judgment of conviction he has again appealed to this court. When arraigned and called to plead, appellant entered a plea of former conviction, which being overruled, he refused to plead further. [146 P. 379]

A plea of not guilty was entered for him. Rem. & Bal. Code, § 2109, par. 3. The plea was renewed upon the trial by way of objections to the admission of testimony to support the charge.

Counsel admit that there would have been no jeopardy if appellant had been discharged at any time before verdict and judgment thereon ( State v. Riley, 36 Wash. 441, 78 P. 1001), but insist in their brief and very able oral argument [84 Wash. 115] that the rule that jeopardy attaches when an accused person has been placed upon trial in a court of competent jurisdiction on a sufficient indictment before a jury regularly impaneled and sworn, and that a discharge of the jury without due cause and without consent of the accused is an acquittal. State v. Kinghorn, 56 Wash. 131, 105 P. 234, 27 L. R. A. (N. S.) 136, can have no application under the plain words and terms of Rem. & Bal. Code, § 2113, which provides:

'A conviction or acquittal by a judgment upon a verdict shall bar another prosecution for the same offense, notwithstanding a defect in form or substance in the indictment or information on which the conviction or acquittal took place.' (Italics are ours.)

They cite the following cases, which were decided under statutes in terms substantially the same as section 2113: Shoemaker v. State, 58 Tex. Cr. 518, 126 S.W. 887; State v. Ward, 48 Ark. 36, 2 S.W. 191, 3 Am. St. Rep. 213; Harp v. State, 59 Ark. 1, 26 S.W. 714; Tufts v. State, 41 Fla. 663, 27 So. 218.

In the Ward Case the court said:

'The statute provides that an acquittal or conviction by a judgment or a verdict shall bar any other prosecution for the same offense, notwithstanding a defect in form or substance in the indictment on which the trial took place.'

Counsel declare that we have admitted the rule to be the same as there declared, in State v. Burns, 54 Wash. 113, 102 P. 886:

'The common-law rule prevails in this state except as modified by statute, and, under the statute cited, an acquittal upon a defective information is no bar to another prosecution, unless the judgment of acquittal is based upon a verdict after trial. In this case there was no trial and no verdict; hence the dismissals upon the defective complaint and information were no bar to a further prosecution.'

If we could go no further than the statute relied on, it would seem that appellant's argument could not be answered; for surely it is within the power of the Legislature to define [84 Wash. 116] jeopardy and the rights and privileges of one charged and convicted, although it be under an information defective in form or substance.

'The state has full control over the procedure in its courts, both in civil and criminal cases, subject only to the qualification that such procedure must not work a denial of fundamental rights or conflict with specific and applicable provisions of the federal Constitution.' Brown v. New Jersey, 175 U.S. 172, 20 S.Ct. 77, 44 L.Ed. 119

Rem. & Bal. Code, § 2113, is an inheritance from the earlier practice acts, and was first codified in the Code of 1881, § 768. As is too often the case, the Legislature has since assumed to legislate upon the same subject without particular reference to existing statutes.

In 1909 an act entitled 'An act relating to crimes and punishments and the rights and custody of persons accused or convicted of crime, and repealing certain acts,' was passed. This act is known as the Criminal Code. It is there provided:

'No order of dismissal or directed verdict of not guilty on the ground of a variance between the indictment or information and the proof, or on the ground of any defect in such indictment or information, shall bar another prosecuting for the same offense.' Laws 1909, c. 249, § 64; Rem. & Bal. Code, § 2316.

This provision is admittedly hostile in words, in purpose and intent, to section 2113. The act of 1909 is a later enactment, and is controlling unless it can be said that the title to the act of 1909 is not broad enough to warrant a holding that former acts are repealed, or sufficient to sustain section 2316. The question of the...