State v. Hansen

• Decision Date: 30 November 1894
• Citation: 10 Wash. 235,38 P. 1023
• Parties: STATE v. HANSEN.
• Court: Washington Supreme Court

38 P. 1023

10 Wash. 235

STATE v. HANSEN.

Supreme Court of Washington

November 30, 1894

Appeal from superior court, Whitman county; E. H. Sullivan, Judge.

John Hansen was convicted of burglary, and appeals. Affirmed.

Chadwick, Fullerton & Wyman, for appellant.

J. N Pickrell, Pros. Atty., for the State.

STILES J.

On the 20th day of November, 1893, appellant was brought to trial upon an information charging him with the crime of burglary committed in the nighttime. Thereupon the prosecuting attorney moved the court to quash the information, and for leave to file a new one. The journal entry of the transaction contains the only statement in the record concerning the court's action upon this motion, and is as follows "The court, after being fully advised in the premises grants said motion, and also grants leave to file a new information." The prosecutor forthwith filed a new information, charging burglary generally; a warrant was issued; appellant was arrested thereon; he was arraigned immediately; and was given until December 4th to plead. Before the entry of his plea appellant moved to quash the new information upon several grounds, which are here presented viz.: (1) That the court had no jurisdiction of the subject-matter or of the person of the defendant, or to try him upon the information; (2) that the information was not filed within 30 days after defendant was held to answer; (3) that defendant had not been brought to trial within 60 days after the filing of an information against him.

We shall dispose of the last two of these grounds at this point. As to the second ground, it is sufficient to say that this record does not show when, if ever, appellant had been held to answer. As to the third, we are of the opinion that, if the second information could be filed at all, it must be held that the accused had no right to urge against a trial upon it that a time greater than 60 days had elapsed since the filing of some former information, which was no longer in the case. After overruling the appellant's motion, the court entered a plea of not guilty for appellant, he standing mute, and the cause proceeded until January 17th, when a trial was had which resulted in a verdict of guilty. At every proper stage of the case appellant renewed his objections, and now presents them here. His allegations of error are based upon two propositions, viz.: (1) That the quashing of an information on motion of the prosecutor, unless the reason of the court's action be set forth in the order entered in the record, as required by Code Proc. § 1372, works the loss of jurisdiction of the court over the person of the defendant; (2) that, under the circumstances stated, it was error to allow the filing of a new information charging burglary generally.

Concerning Code Proc. § 1372, we are of the opinion that its provisions go no further than those cases where the prosecutor desires for some valid reason, "in furtherance of justice," as the statute expresses it, to dismiss the charge against the accused without any intention to renew it in some other form. It is a statutory prohibition against the entry of a nolle prosequi at the mere instance of the prosecuting attorney, and without the assent of the court, and is followed by Code Proc. § 1373, abolishing the entry of nolle prosequi, and...