State v. Nilnch

• Decision Date: 19 November 1924
• Docket Number: 18723.
• Citation: 131 Wash. 344,230 P. 129
• Court: Washington Supreme Court
• Parties: STATE v. NILNCH.

230 P. 129

131 Wash. 344

STATE v. NILNCH.

No. 18723.

Supreme Court of Washington

November 19, 1924

Department 1.

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

Mike Nilnch was convicted of unlawfuly possession of intoxicating liquor, and appeals. Affirmed.

Martin F. Smith, of Hoquiam, for appellant.

W. J Murphy, of Aberdeen, for the State.

TOLMAN, J.

Appellant was charged with unlawful possession of intoxicating liquor for the purpose of sale, etc., and by the verdict of a jury was found guilty of unlawful possession. Appealing he presents three distinct questions:

1. After the impaneling of the jury and the opening statement of counsel, the court's attention was called to the fact that the defendant had not theretofore been arraigned. Thereupon, over the objection of his counsel, the defendant was arraigned and, he standing mute, the court ordered a plea of not guilty to be entered in his behalf. No request for additional time to plead, or for a continuance, was made. This action of the trial court is assigned as error. But we thing it is a mere irregularity not affecting any of appellant's substantial rights. What has already been said by this court in State v. Straub, 16 Wash. 111 47 P. 227; State v. Sexton, 37 Wash. 110, 79 P. 634; State v. Kinghorn, 56 Wash. 131, 105 P. 234, 27 L R. A. (N. S.) 136, and State v. Garland, 65 Wash 666, 118 P. 907, is sufficient answer to appellant's argument, and further comment is unnecessary.

2. It is urged that the trial court erred in denying appellant's motion to dismiss for failure to bring the case to trial within 60 days after the date of the filing of the information. Passing the question of an agreement of his counsel that the case should be continued, and like matters it appears that the motion to dismiss was not filed until the day the case was set for trial, and was not called to the attention of the court until the case was actually reached for trial. The question thus presented has been decided adversely to appellant's contention. State v. Seright, 48 Wash. 307, 93 P. 521; State v. Alexander, 65 Wash. 488, 118 P. 645; State v. Miller, 72 Wash. 154, 129 P. 1100. In the Alexander Case, supra, this court said:

'After the trial has begun, or when it is about to take place, it is too late for the defendant to move for a dismissal. The statute provides a remedy for the defendant when the prosecutor without cause does not bring the case to trial. It was not intended as a means to escape or a method of delay when the trial is at hand. If the motion had been made prior to the time of trial, the court, for good cause shown, would refuse a dismissal. When the trial is at hand, the defendant will be held to have waived his right under the statute. There was therefor no error in the refusal of the court to dismiss the action when it was on trial.'

3. The third assignment of error is that the liquor seized by the officers without a search warrant was improperly received in evidence. We think it sufficiently appears from the record that the liquor was in plain view in the appellant's automobile, and that the offense was committed in the presence of the officers, to obviate the necessity for a search warrant under the authority of State v Llewellyn, 119 Wash. 306, 205 P. 394; State v. Miller, 72 Wash. 154, 129 P. 1100; State v. Hughlett, 124 Wash, 366, 214 P. 841; ...