State v. Wilson

• Decision Date: 29 July 1924
• Docket Number: 18532.
• Court: Washington Supreme Court
• Parties: STATE v. WILSON.

227 P. 850

130 Wash. 444

STATE v. WILSON.

No. 18532.

Supreme Court of Washington

July 29, 1924

Department 2.

Appeal from Superior Court, Snohomish County; Alston, Judge.

Al. D Wilson was convicted of possessing intoxicating liquors, and appeals. Affirmed.

Carkeek, McDonald, Harris & Coryell, of Seattle and Gordon D. Eveland, of Everett, for appellant.

C. T Roscoe and M. H. Forde, both of Everett (Alex M. Vierhus, of Everett, of counsel), for the State.

BRIDGES J.

Appellant was charged with and convicted of the crime of having possession of intoxicating liquors. One of his grounds for reversal is based upon the following facts: It appears that after the sheriff had raided the appellant's place and found a pint of moonshine whisky, the prosecuting attorney filed an information charging him with unlawful manufacture of the liquor. Later, another information was filed charging him with unlawful possession of the same liquor. Thereafter the court made an order dismissing the charge of manufacturing and allowing the information charging unlawful possession to be filed.

Appellant's position is that, the first information charging the manufacture of this pint of moonshine whisky having been dismissed, he cannot now be tried on the second information, because both charged a misdemeanor. He rests his argument on section 2315, Rem. Comp. Stat., and the case of State v. Durbin, 32 Wash. 289, 73 P. 373. The statute reads as follows:

'An order dismissing a prosecution under the provisions of sections 2311, 2312, or 2314 [the dismissal of the first information here being under the last section] 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.'

In the Durbin Case, supra, the first information charged the appellant with assault and battery committed upon a person named. Later, and before trial, the prosecuting attorney filed another information based on the facts of the first, charging an attempt to commit mayhem. Later still, the first information was dismissed by order of the court. During the trial upon the second information the court instructed the jury that the crime of assault and battery was an included offense and the jury found the appellant guilty of that crime. We held that the filing and dismissal of the first information was a bar to a prosecution under the second. This holding was based upon section 6916 of Bal. Code, reading as follows: 'An order for dismissal as provided in this chapter is a bar to another prosecution for the same offense, if it be a misdemeanor; but it is not a bar if the offense charged be a felony.' It will be noted that the old statute provided for a bar as to the same offense charged in the dismissed information, while the present statute provides for a bar as to a misdemeanor where the former information charged the same misdemeanor. Manifestly, the purpose of the present statute is to forbid the prosecution for the same misdemeanor charged in the first information; for illustration, the prosecuting attorney may 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. Wickstron, 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 * * * with which a defendant had been previously charged and the action dismissed.'

Speaking of the case of State v. Durbin, supra, we further said:

'The statute upon which that case was based is general is its terms, while the present statute is specific and definite, and provides in express language when a dismissal will work a bar and when it will not. The difference in language in the two statutes is such that the holding in that case would not now be

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