State v. Kemp

• Decision Date: 17 November 1892
• Citation: 31 P. 711,5 Wash. 212
• Parties: STATE v. KEMP.
• Court: Washington Supreme Court

31 P. 711

5 Wash. 212

STATE v. KEMP.

Supreme Court of Washington

November 17, 1892

Appeal from superior court, Pierce county; W. H. UPTON, Judge.

An indictment against John A. Kemp for embezzlement was dismissed by the trial court, and the state appeals. Appeal dismissed.

W H. Snell, Pros. Atty., and Chas. Bedford, for the State.

Pritchard, Stevens, Grosscup & Seymour, for respondent.

HOYT, J.

This proceeding was commenced by the filing of an information against the defendant, charging him with the crime of embezzlement under our statute. A plea of not guilty was duly entered by such defendant, and when the cause came on for trial a motion was made by him to dismiss the action for the reason that the court had no jurisdiction of his person. The motion was granted by the trial court, and from the judgment of dismissal rendered thereon the state has brought the case here for review.

The question presented by the brief of the appellant is an important one, and we should be glad to enter upon its discussion at this time if we could properly do so, but the view we take of our statute compels us to hold that we have no jurisdiction of this cause. In our opinion, the question decided by the court below was not one from which an appeal would lie to this court at the suit of the state. It is specially provided in section 1402, Code Proc., that no appeal shall be allowed to the state in any criminal action excepting when the error complained of is in setting aside the indictment or information, or arresting the judgment, on the ground that the facts stated in the indictment or information do not constitute a crime. From this provision it will be seen that the ruling of the court below in a criminal action is subject to review here at the instance of the state only when such ruling is as to the sufficiency of the indictment or information, and, as the question passed upon by the court, as shown by the record in this case, was not of that nature, it follows that no appeal could be had by the state to this court. The appeal must be dismissed for want of jurisdiction to hear and determine the question presented.

ANDERS, C.J., and STILES, SCOTT, and DUNBAR, JJ., concur.