State v. Riley

Citation78 P. 1001,36 Wash. 441
PartiesSTATE v. RILEY.
Decision Date30 December 1904
CourtUnited States State Supreme Court of Washington

Appeal from Superior Court, Clallam County; Geo. C. Hatch, Judge.

Tilley Blanche Riley was convicted of perjury, and appeals. Reversed.

Trumbull & Trumbull, for appellant.

Geo. H Clementson, J. E. Cochran, and Jas. G. McClinton, for the State.

FULLERTON C.J.

The appellant was convicted of the crime of perjury, and appeals from the judgment and sentence pronounced against her. The information upon which the appellant was first arrested was filed on November 29, 1901. To this information the appellant filed a demurrer on the ground that it did not state facts sufficient to constitute a crime, which demurrer the trial court, after argument heard thereon, overruled. On December 21, 1901, the state asked and obtained leave of the court to withdraw the first information and file another one charging the appellant with the same crime. Leave was given accordingly, and a new information was filed on the same day. To this information the appellant also demurred generally, which demurrer the court also overruled. In January, 1902, the appellant was tried for the offense charged in the second information; the trial resulting in a verdict of guilty, which was returned on the 25th day of that month. On the 27th day of the same month this verdict was, on the motion of appellant, set aside by the court on the ground that the appellant had not had a fair or impartial trial. After the new trial had been granted, the state asked and obtained leave to withdraw the second information and file a third one, supporting its application by an affidavit pointing out in what particulars and for what reason the state deemed the second information faulty, and a new one desirable. This motion was granted over the objection of the appellant. The appellant was thereafter tried upon this third information, found guilty by the jury, and the judgment and sentence pronounced against her, from which this appeal is taken.

The appellant first contends that the several orders of the court above referred to permitting the withdrawal of the informations filed and the filing of new ones against her amounted to such a gross abuse of discretion as to entitle her to a discharge and to a dismissal of the prosecution against her. She concedes that it is largely a matter of discretion with the trial court whether or not the prosecution may amend the information in the course of a criminal proceeding, but she contends that the circumstances here were such that the amendment operated to her prejudice, and deprived her of substantial rights. She urges that when the court overruled the demurrer to the second information, and overruled an objection to the admission of testimony made at the trial on the ground that the information did not state facts sufficient to constitute a cause of action, that such rulings became the law of the case, binding upon the superior court, not subject thereafter to modification or change by it. She urges further that after the court became convinced that the demurrer, and objection to the admission of evidence, was well taken, it was its duty to discharge the defendant, rather than grant a new trial, and afterwards permit the information to be amended; that these rulings tended to mislead her, as she would not have filed a motion for a new trial had she understood that the court was going to grant it on the ground of the insufficiency of the information, but would have appealed directly from any judgment the court might have pronounced against her.

It is doubtless true that if the rulings of the trial court complained of prevented the appellant from having a fair and impartial trial on the merits of the controversy, or if they deprived her in any way of a substantial right guarantied her by law, which would entitle her to a judgment of acquittal without a determination of the merits, the rulings amounted to error, and she is now entitled to have such a judgment directed in her favor. But we are unable to see in what way the court's rulings could have any such result. It is not error for a court to allow the information to be withdrawn and another, more perfect one, be substituted in its stead. State v. Gile, 8 Wash. 12, 35 P. 417; State v Hansen, 10 Wash. 235, 38 P. 1023; State v Lyts, 25 Wash. 347, 65 P. 530. Nor was it error to do so after the court had first considered it and adjudged it sufficient. No litigant has a vested right to have an error perpetuated in the record. If the trial court finds at any stage of the proceedings prior to the entry of final judgment that it has committed an error that will render its final judgment voidable or void, it is not only its right, but its duty, to correct it. So here, if it be true, as the appellant says, that the information on which she was first tried did not state facts sufficient to constitute a crime, it was the duty of the court to set the verdict aside, and allow a new and sufficient information to be filed, and put the appellant to rial thereon. A trial on an insufficient information is a mistrial if a verdict of guilty results. It does not constitute jeopardy, and is not a bar to a subsequent prosecution. There was therefore no obligation on the part of the court to discharge the appellant either on her motion made at conclusion of the evidence or at other stages of the case. On the contrary, it was the court's duty, if he believed a crime had been committed, and that the appellant had committed that crime, to hold her for further proceedings, so that the question of her guilt could be submitted to the determination of a jury on a sufficient information. Nor would the appellant have been entitled to a discharge had judgment been entered upon the verdict on the first trial, and an appeal therefrom taken to this court, and the judgment reversed for insufficiency of the information. This court will direct a discharge of the defendant on the reversal of a judgment of conviction only when it appears that no crime whatever has been committed. Whenever it reverses for mere error committed by the trial court, whether that error be the holding that an insufficient indictment or information is sufficient, or error in the proceedings occurring at the trial proper, it will direct that the defendant be held for further proceedings. This is not only the rule to be derived from the general laws relating to the criminal practice, but it is the special mandate of the statute. Ballinger's Ann. Codes & St. tit. 'Procedure in Criminal Actions.' Also Id. § 6532. In the case before us the order of the trial court permitting the information to be withdrawn and another one filed in its stead after trial not only did not violate any legal right of the appellant, but was directly within the court's powers and...

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12 cases
  • State v. McCollum
    • United States
    • Washington Supreme Court
    • 27 Septiembre 1943
    ...the same time and place and constituted but a single transaction. State v. Farris, 26 Wash. 205, 66 P. 412, questioned by State v. Riley, 36 Wash. 441, 447, 78 P. 1001. Copland v. Pirie, 26 Wash. 481, 67 P. 227, Am.St.Rep. 769, and State ex rel. Arnold v. Mitchell, 55 Wash. 513, 104 P. 791,......
  • State v. Ware
    • United States
    • Washington Supreme Court
    • 31 Mayo 1910
    ...been rejected under the authority of State v. Moody, 18 Wash. 165, 51 P. 356; State v. Lattin, 19 Wash. 57, 52 P. 314, and State v. Riley, 36 Wash. 441, 78 P. 1001. In cases it was held that one who had such an opinion as to the guilt or innocence of the accused as would require evidence to......
  • State v. George
    • United States
    • Washington Supreme Court
    • 11 Febrero 1915
    ...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 that the rule that jeopardy attaches when accused person has been placed......
  • State ex rel. Granite Inv. Co. v. Superior Court of Washington for Stevens County
    • United States
    • Washington Supreme Court
    • 25 Septiembre 1924
    ...whether the result of inadvertence or of a mistaken view of the rule of law applicable to the situation. As we said in State v. Riley, 36 Wash. 441, 78 P. 1001: 'If the trial court finds, at any stage of proceedings prior to the entry of final judgment, that it has committed an error that w......
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