State v. Todd

• Decision Date: 28 November 1927
• Docket Number: 20445.
• Citation: 145 Wash. 647,261 P. 397
• Parties: STATE v. TODD.
• Court: Washington Supreme Court

261 P. 397

145 Wash. 647

STATE v. TODD.

No. 20445.

Supreme Court of Washington

November 28, 1927

Department 2.

Appeal from Superior Court, Cowlitz County; Hewen, Judge.

A Ruric Todd was convicted of malicious prosecution, and he appeals. Affirmed.

John T. Casey, of Seattle, for appellant.

Hite Imus, of Kelso, Maurice A. Langhorne, of Tacoma, and Joseph A. Mallery, Cecil C. Hallin, and J. E. Stone, all of Kelso for the State.

ASKREN J.

The defendant was convicted by a jury of the crime of malicious prosecution, and sentenced by the court to serve a sentence of 90 days in the county jail, and pay a fine of $250.

Upon appeal, his principal assignment of error is directed to the claim that he was twice placed in jeopardy for the same offense, thereby violating his constitutional rights. A short statement of the facts will be necessary properly to understand this assignment of error. Appellant, while mayor of Kelso, went to the town of Castle Rock and filed a charge against six Kelso citizens, including some members of the city council, charging them with conspiring to obtain $1,000 from the city of Kelso. The cause being dismissed by the justice of the peace, the prosecuting attorney filed a charge against appellant alleging that he had committed the crime of malicious prosecution by filing a justice court complaint in Castle Rock charging the six men named therein with grand larceny or larceny by embezzlement, and alleging that all of the charges therein were untrue. The justice court complaint was not set out in the information. The cause came regularly on for trial. After a jury had been impaneled and sworn to try the cause, the state offered in evidence the justice court complaint. The appellant immediately objected upon the ground that it was incompetent, irrelevant immaterial, and that 'it differs from the charge in the information.' The court, after studying the justice court complaint, concluded that it charged a conspiracy, whereas the information alleged that the charge contained therein was grand larceny, and thereupon sustained the objection of appellant to its introduction.

After much discussion as to whether an amended information or a new information should be filed, appellant's counsel advised the court that he was ready to go on with the trial on the old information, but not on the new one, and that, if the state did not wish to proceed on the old information, there was nothing the court could do but discharge the jury and dismiss the case.

An amended complaint was filed, and the jury discharged. The court entered no formal order at the time he discharged the jury. It is contended by the state that the court dismissed it on the ground that there was a variance between the proof and the charge filed. Appellant denies that it was dismissed upon the ground of variance. However, we think the record sustains the state's claim in this respect. The state offered the complaint in evidence because it deemed it evidence in conformity with the original charge. Appellant's counsel, by his objection to the court to its introduction on the ground that it differed from the charge, could have meant but one thing to the court, and that was that the proof offered varied from the charge. It is not necessary for us to here determine whether or not the court was right in holding that it differed from the original charge, or that there was a variance between it and the proof. Appellant's counsel took the view that it did, and by getting the court to adopt the same view prevented the state from offering its legitimate proof and trying the appellant thereunder. The net result of this action, of course, was to prevent the state from offering the proof of the filing of the justice court complaint which gave rise to the charge of malicious prosecution. The appellant by his action prevented a trial upon the original information. It will not do for him now to complain either that the court was in error or insist that he has been twice put in jeopardy, after successfully persuading the court to make a ruling in accordance with his desire. There is no question about the right of the court to dismiss a charge when there is a variance. Rem. Comp. Stats. § 2114.

The case of Carroll v. State, 50 Tex. Cr. R. 485, 98 S.W. 859, 123 Am. St. Rep. 851, 14 Ann. Cas. 426, is very illuminating upon the question here raised. In that action the defendant was placed on trial for stealing a horse from one E. D. Parker. One place in the information the name was spelled 'Paker,' and in three other places it was spelled 'Parker.' After the jury were impaneled and sworn to try the case, the defendant objected because of the variance, whereupon, the court quashed the indictment and dismissed it. A new charge was filed that was identical with the first one except that Parker's name was spelled correctly in all places in the indictment. Upon the second trial it was claimed that the defendant was being placed twice in jeopardy. The court rejected this plea of former jeopardy, saying:

'Without going into the sufficiency of the original indictment--that is, whether it was valid or not, as to the name--we are of opinion that appellant is not in condition to urge it on the question of jeopardy, whether the indictment was sufficient or not. The indictment was quashed at his instance. While it is true that jeopardy had attached upon the entry of the plea of not guilty, if the indictment had been good, this plea of jeopardy could not avail appellant, for the reason that he secured the quashal of the indictment and the dismissal of the case. As a general proposition, where an indictment is quashed as being insufficient or a demurrer has been sustained and the accused is therefore discharged, there is no such jeopardy as will bar a prosecution on another indictment for the same offense. By the great weight of authority, where the accused is arraigned upon a sufficient indictment and pleads, and the jury is impaneled, and the plea of not guilty is entered, the dismissal of the indictment, without the consent of the accused, amounts to an acquittal, and bars further prosecution for the same crime. This

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