State v. Witt

Citation280 P. 1,153 Wash. 612
Decision Date04 September 1929
Docket Number21993.
PartiesSTATE ex rel. KRITNICH et al. v. WITT, Superior Court Judge.
CourtUnited States State Supreme Court of Washington

Certiorari by the State, on the relation of Dan Kritnich and another, to review a ruling of Fred H. Witt, Judge of the Superior Court of Spokane County. Proceeding dismissed.

C. W Greenough and Frank Funkhouser, both of Spokane, for respondent.

PARKER J.

By this certiorari proceeding commenced in this court, relators Kritnich and Kostich, seek review and correction of an alleged erroneous ruling of the superior court for Spokane county in effect threatening to proceed with the trial of a criminal case in which they are jointly charged as defendants, pending in that court, which ruling of the court they insist is erroneous because of prior proceedings amounting, in legal effect, to their acquittal of the charge against them.

Relators were, by information filed in the superior court for Spokane county, charged with being jointists, in that they unlawfully maintained a place in that county for the unlawful sale of intoxicating liquor. They pleaded not guilty. The case came regularly on for trial on June 6, 1929. A jury was then duly impaneled to try the case. The name of the first witness called for the prosecution was not in the list of the names of witnesses theretofore furnished by the prosecuting attorney to relators. This their counsel claimed to be a surprise to them, and for that reason objected to the witness testifying. The colloquy then occurring between counsel and the trial judge resulted in the judge discharging the jury and resetting the case for trial on June 10, 1929. This ruling manifestly was so made to the end that the witness could be called by the prosecution after a reasonable time following counsel for relators learning of the intention of the prosecuting attorney to call the witness for the state. It is alleged, in relators' petition for review, filed in this court, that they 'have filed a plea of former jeopardy,' evidently meaning that they entered such plea after the discharge of the jury and resetting the case for trial. We assume this allegation to be true though the record brought here does not otherwise show such plea having been made by relators. It does not appear by the record before us that the trial court has made any ruling upon or disposition of relators' plea of former jeopardy or even that such plea has been...

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