State v. O'Neal

Decision Date20 March 1928
Docket Number20875.
Citation147 Wash. 169,265 P. 175
CourtWashington Supreme Court
PartiesSTATE v. O'NEAL.

Department 1.

Appeal from Superior Court, Yakima County; Hawkins, Judge.

Mabel O'Neal was convicted of selling intoxicating liquor and a jail sentence was suspended on good behavior. From an order denying a motion to set aside an ex parte order revoking the suspension of sentence, defendant appeals. Reversed without prejudice.

Joseph C. Cheney, of Yakima, for appellant.

G. E Clark and C. G. Walters, both of Yakima, for the State.

MITCHELL J.

In April, 1926, Mabel O'Neal, upon pleas of guilty, was sentenced to a fine of $250 on each of two counts for the unlawful sale of intoxicating liquor, to pay costs of the prosecution, and to serve altogether six months in the county jail, 'jail sentences to be suspended on good behavior.' She promptly paid the fines and costs.

Thereafter and on November 13, 1926, without any notice whatever to her and in her absence, the superior court, upon the application of a deputy prosecuting attorney, received sworn testimony in open court in support of a petition to revoke the order suspending the sentence. She was charged with misbehavior. The petition was granted, and an order duly signed and entered revoking the order suspending the jail sentence and directing that she be committed to the county jail. Since her arrest on that order it appears that she has been at liberty on bonds approved by the superior court.

On November 22, 1926, she served and filed a notice of appeal from the ex parte order of November 13, 1926, and on November 28, 1926, she filed in the superior court an application to vacate the ex parte order of November 13, 1926, on the ground of lack of notice to her of the complaint and hearing upon which the order was based. On March 25, 1927, this court granted the state's motion to dismiss the appeal of November 22, 1926. The motion upon which the appeal was dismissed was upon the grounds that the order of commitment was made and entered by the superior court upon the ex parte application of the state, and that the appellant had not moved to have that order vacated prior to the giving of the notice of appeal. It was also claimed in the motion to dismiss the appeal that the appeal had not be diligently prosecuted. On May 17, 1927, she again filed a motion in the superior court to set aside the ex parte order revoking the order suspending sentence upon the ground that she had no notice of the hearing and was not present in person or by counsel. This motion, together with the former one to the same effect, were presented regularly to the superior court and by one order the superior court denied both motions. The present appeal is from that order.

The state moves to dismiss the present appeal, claiming that the dismissal by this court of the former appeal is res adjudicata. The record on the former appeal shows that the appellant did not resist a dismissal, and that the state in its written brief and argument claimed that the purported appeal was prematurely taken because no application had been made to the trial court to set aside the order complained of, citing 3 C.J. p. 608, § 452, and quoting from Wilson v. Martin, 43 Wash. 95, 86 P. 205, 10 Ann. Cas. 37, as follows:

'The rule seems to be well established that an appeal will not lie from an ex parte order. The proper procedure is to move to vacate or set aside the order and appeal from the decision on the motion.'

That was the sole contention of the state on that motion to dismiss. The motion was granted without an opinion, and must be held to have been granted for the reasons urged by the state, and that it does not constitute a bar to the present appeal.

On the merits and for the purposes of this appeal, the statute provides, as to this kind of a crime, that 'the court may in its discretion, at the time imposing sentence upon such person, direct that such sentence be stayed...

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