State v. Shears
| Decision Date | 23 March 1922 |
| Docket Number | 16860. |
| Court | Washington Supreme Court |
| Parties | STATE v. SHEARS. |
Department 1.
Appeal from Superior Court, King County; A. W. Frater, Judge.
Allen H. Shears was convicted of grand larceny, and he appeals. Affirmed.
Vinee H. Faben and F. W. Crary, both of Seattle, for appellant.
Malcolm Douglas, T. H. Patterson, and Chester A. Batchelor, all of Seattle, for the State.
The appellant was convicted of grand larceny. It was charged against him that in King county on December 1, 1917, and at divers times thereafter continuously until September 22, 1918, he being the agent of the Fire Association of Philadelphia, and the Insurance Company of North America, corporations of Philadelphia, Pa., doing business under under the name of the Philadelphia Underwriters, did then and there have intrusted to him, and have in his possession, custody and control as such agent $3,500, the property of his principals, and that he did then and there unlawfully, fraudulently, and feloniously withhold and appropriate the same to his own use, with intent to deprive and defraud the owners thereof.
He refused to plead when called upon so to do, and the plea of not guilty was entered for him by direction of the trial court. At the time of his arraignment and thereafter on several occasions down until the commencement of the trial, the appellant, by special appearances, interposed and insisted upon what he terms special pleas in abatement, and to the jurisdiction of the court. The refusal of the court to allow the special pleas has induced the appellant to make three assignments of error which may be considered together.
Originally the appellant was charged with this same offense by a complaint filed in the justice of the peace court in Seattle. Not being in this state at that time, he was brought here by extradition proceedings. Prior to any preliminary examination by the justice of the peace and while the appellant was in the custody of the sheriff of King county, he instituted habeas corpus proceedings in the superior court of that county. In his petition therein it was alleged in substance that the complaint upon which the governor of this state issued his requisition was unfounded in fact and law; that no crime had been committed; that the proceedings had been instituted for the collection of a debt; and that all proceedings before the Governor of this state and the Governor of the asylum state were irregular, illegal, and entirely without jurisdiction. Upon the return made by the sheriff it was ordered by the court that the exceptions of the petitioner to the return be granted and sustained, and it was 'further ordered and adjudged that the writ of habeas corpus be issued and sustained and that the defendant be discharged from custody by virtue of said writ and this decree.' With those proceedings including the judgment we are in no wise concerned other than to determine if they are available to the appellant in the present case. It appears that at the conclusion of the habeas corpus case the prosecuting attorney filed the information upon which the appellant was brought to trial. It is claimed by the appellant that the judgment in the habeas corpus case is a har to the present action, and it is also claimed that, as the justice of the peace before whom complaint was first made never held a hearing or gave a trial, therefore the superior court could not entertain jurisdiction.
Section 2109, Rem. Code, provides for the pleas that may be interposed upon arraignment. They are: (1) A plea of guilty (2) a plea of not guilty; and (3) a plea of former conviction or acquittal. In the case of a plea of acquittal the statute requires that it designate the court and date of the judgment relied upon. The judgment in the habeas corpus case relied on here was not an acquittal on the merits, but only a discharge from the custody of the sheriff. It was not a discharge from the penalty of the crime and did not operate as an acquittal so as to bar a prosecution and trial on the merits. It shows on its face there was no investigation into the guilt or innocence of the accused. 16 C.J. p. 255, § 411, and cases cited; 16 C.J. p. 257, § 423; In re Milburn, 9 Pet. 704, 9 L.Ed. 280; Benson v. Palmer, 31 App. D. C. 561, 17 L. R. A. (N. S.) 1247, 1252. The criminal procedure under which he has now been tried and convicted, though for the same crime, is a different procedure and upon different process from that which resulted in his first arrest and subsequent dismissal on habeas corpus. He is charged with having committed a felony, and the rule in this...
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