State v. Williams

• Court: Washington Supreme Court
• Writing for the Court: [43 Wash. 506] MOUNT, C.J.
• Citation: State v. Williams, 43 Wash. 505, 86 P. 847 (Wash. 1906)
• Decision Date: 28 August 1906
• Parties: STATE v. WILLIAMS.

86 P. 847

43 Wash. 505

STATE v. WILLIAMS.

Supreme Court of Washington

August 28, 1906

Appeal from Superior Court, Snohomish County; W. W. Black, Judge.

Charles E. Williams was convicted of attempted burglary, and he appeals. Affirmed.

Padgett & Stingley, for appellant.

J. W Hartnett, for the State.

MOUNT, C.J.

The appellant was convicted of attempted burglary, and appeals from a judgment thereon. It appears that an information was filed on May 9, 1905, charging appellant with the crime. He filed a demurrer, which was overruled. He then entered a plea of not guilty, and on June 12, 1905, was tried to a jury. He was found guilty and then moved for a new trial, which was granted on August 26, 1905, solely upon the ground of misconduct of the jury. On September 2, 1905, the state was permitted, over the objection of appellant, to dismiss the first information, and file a new one charging the same crime. The clerk made no record of the matter on that day. On the 5th of September the appellant moved to quash the information upon the ground that there was another information pending charging the same offense. This motion came on for hearing on September 9th, when the omission of the clerk to make the entry of the proceeding of September 2d was called to the attention of the court, a nunc pro tunc order, showing what had occurred on September 2d was directed to be made, and the court thereupon denied the motion to quash, and on the same day overruled a general demurrer to the second information. The appellant then entered a plea of not guilty and of former acquittal. On September 18, 1905, he was placed on trial before a jury. At the trial no evidence was offered upon the question of former acquittal, except the fact that there had been another trial of the case. The court did not instruct the jury upon the law of former acquittal. A verdict of guilty was returned, but no finding was made by the jury upon the plea of former acquittal. Objections were made to receiving the verdict. A motion for a new trial was denied, and judgment entered.

Several errors which appertain to the first information and to the first trial are as signed. We need not discuss these, because they are disposed of by our conclusion upon the right of the prosecuting attorney to file a new information. It is alleged as error that the court allowed a new information to be filed, and overruled defendant's motion to quash. Both these questions are based upon the same ground and depend upon the power of the court to permit a new information to be filed. This is no longer an open question in this state. It has been many times decided. State v Riley, 36 Wash. 441 78 P. 1001, and cases cited.

It was not error for the court to enter the nunc pro tunc order. The court always has power to make its records speak the truth. Sivyer v. Lawyer, 25 Wash. 360, 65 P. 529; Barthrop v. Tucker, 29 Wash. 666, 70 P. 120; 15 Enc. Pl. & Pr. page 344. The information in this case is substantially the same as the information in State v Garbe, 34 Wash. 395, 75 P. 993, with the exception of the language which we there held superfluous. Under the rule in that case, the information in this is sufficient, and the court correctly overruled the demurrer.

The appellant contends that the court erred in failing to instruct the jury upon the law of former acquittal, and in receiving a verdict without a finding of the jury upon that plea. The evidence has not been brought here on this appeal and all there is in the record to show that there was any evidence at all upon this question is the following: "Q. Did you not testify differently on your former trial in ...