State v. Wickstrom

Decision Date16 August 1916
Docket Number13308.
Citation159 P. 753,92 Wash. 503
CourtWashington Supreme Court
PartiesSTATE v. WICKSTROM.

Department 2. Appeal from Superior Court, Pierce County; Ernest M. Card Judge.

Jack Wickstrom was convicted of assault in the third degree, his motion for a new trial was overruled, and he appeals. Affirmed.

Frank G. Riley, of Tacoma, for appellant.

Fred G Remann and James Selden, both of Tacoma, for the State.

MAIN J.

The defendant was charged by information with the crime of assault in the second degree. The trial resulted in a verdict of guilty of assault in the third degree. Motion for a new trial being made and overruled, a judgment was entered upon the verdict, and the defendant was given a jail sentence. From this judgment and sentence the appeal is prosecuted.

The facts are these: On June 30, 1915, the appellant was charged in the justice court with an assault in the third degree. On the same day a warrant was issued and the arrest made. The date set for the hearing was July 8, 1915. For his appearance on July 8th, the defendant deposited $10 cash bail. On July 6, 1915, an information, charging the defendant with assault in the second degree, was filed in the superior court. After this information had been filed, the appellant was arrested and gave bond for his appearance in the superior court. When the case in the justice court was called on July 8th, as appears from the docket entry, the cause was dismissed on motion of the state because an information had been filed in the superior court. In response to that information the appellant pleaded not guilty, and that the dismissal of the action in the justice court was a bar to any further prosecution.

The sole question here for determination is whether the dismissal of the action in the justice court operates as a bar. Section 2314, Rem. & Bal. Code, provides that the court may, either upon its own motion, or upon application of the prosecuting attorney----

'and in furtherance of justice, order any criminal prosecution to be dismissed; but in such case the reason of the dismissal must be set forth in the order which must be entered upon the record.'

This section further provides that the prosecuting attorney cannot discontinue or abandon a prosecution except as provided therein.

In State v. Hansen, 10 Wash. 235, 38 P. 1023, construing a statute in like language with that just quoted, it was held that the purpose of the statute applies to those cases where the action is dismissed in the furtherance of justice, as the statute expresses it, without any intention to renew it in some other form. It was there said:

'* * * Where, as in this case, by the motion made, which was to quash, dismiss, or withdraw the information (whichever it may be called), with leave to file another information, the request showed upon its face that there was no intention to abandon the prosecution, the reason for the application of this statute fails.'

In the present case the docket entry of the justice of the peace shows that there was no intention to abandon the prosecution, for it recites that the action was dismissed because an information had been filed in the superior court. There being no intention by the dismissal to abandon the prosecution, the question then arises whether a dismissal under section 2314, Rem. & Bal. Code, operates as a bar to a further prosecution. Section 2315 of the statute provides that an order dismissing a prosecution under section 2314----

'shall bar another prosecution for a misdemeanor or gross misdemeanor where the prosecution dismissed charged the same misdemeanor or gross misdemeanor, but in no other case shall such order of dismissal bar another prosecution.'

By the terms of this statute if a person is charged with a misdemeanor, and the same is dismissed, it bars another prosecution for the same misdemeanor; or if one is charged with a gross misdemeanor and the case is dismissed, it bars another prosecution for the same gross misdemeanor; but in no other case, as the statute says, shall such order of dismissal bar another prosecution. Under the facts in this case the appellant was charged in the justice court with the crime of assault in the...

To continue reading

Request your trial
9 cases
  • State v. McCollum
    • United States
    • Washington Supreme Court
    • 27 Septiembre 1943
    ... ... Northern Pac. R. Co., 32 Wash. 210, 73 P ... 380, questioned--overruled--by Deno v. Standard Furniture ... Co., 190 Wash. 1, 3, 66 P.2d 1158 ... State v. Durbin, 32 Wash. 289, 73 P. 373, ... questioned, as follows, by State v. Wickstrom, 92 ... Wash. 503, 506, 159 P. 753, 754: 'The case of State ... v. Durbin, 32 Wash. 289, 73 P. 373, is cited as ... sustaining the contention that the dismissal of the action in ... the justice court bars further prosecution, because it was ... there held that, ... ...
  • State v. Robinson
    • United States
    • Washington Supreme Court
    • 8 Abril 1946
    ... ... not charge one with possession of intoxicating liquor, ... dismiss the charge and file another information for ... possession of the same liquor. This is the conclusion to ... which we came in State v. Wickstrom, 92 Wash. 503, ... 159 P. 753, where, speaking of the present statute, we ... said: ... "It ... bars a prosecution when the second prosecution is for the ... same misdemeanor [or gross misdemeanor] with which a ... defendant had been ... ...
  • Maryland Cas. Co. v. Washington Nat. Bank
    • United States
    • Washington Supreme Court
    • 16 Agosto 1916
    ... ... supplemental, to statute, are appropriate[92 Wash. 499] to a ... public contract. State ex rel. Bartelt v. Liebes, 19 ... Wash. 589, 595, 54 P. 26, and Pacific Bridge Co. v. U.S ... Fidelity Co., 33 Wash. 47, 55, 73 P. 772, ... ...
  • State v. Deloria
    • United States
    • Washington Supreme Court
    • 5 Mayo 1924
    ...Seright, 48 Wash. 307, 93 P. 521; State v. Burns, 54 Wash. 113, 102 P. 886; State v. Alexander, 65 Wash. 488, 118 P. 645; State v. Wickstrom, 92 Wash. 503, 159 P. 753. It true that not all of these cases directly discuss the question under consideration here, but they all either expressly h......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT