State ex rel. Anderson v. Callahan

Citations

• 119 Wash. 535
• 206 P. 13
• 1922 Wash. LEXIS 823

Syllabus

<p>Criminal Law (399) — Indictment and Information (87) — ^Demurred —1 Operation and Effect of Order Sustaining — Appeal— Supersedeas. Upon tbe state’s appeal from an order sustaining (with, leave to amend) a demurrer to an information for first degree murder, a non-bailable offense, the accused is not entitled to a discharge, where the information did not contain matter constituting a defense or bar; as the case comes within Rem. Code, § 2103, providing that if a case be resubmitted, the defendant, if in custody, must remain so, unless bailed; in view of § 2106, providing that the order is final only if the information contains matter which is a legal defense or bar, and § 2313, providing for a discharge only in case the case is dismissed, and of §§ 1075 and 1076 prohibiting a discharge from a judicial commitment if the term has not expired, or for any defect or want of probable cause, except upon investigation upon which the prisoner may be recommitted or admitted to bail.</p> <p>Indictment and Information (87)- — -Habeas Corpus (15, 24) — Discharge — Power of Court. In habeas corpus proceedings to release accused, held in custody under a warrant for a non-bailable offense, the information does not become functus officio by the sustaining of a demurrer, with leave to amend, in view of the fact that our statutory provisions do not contemplate a discharge until the case is dismissed, and of the inherent power of the court to commit persons judicially before them, and in view of Rem. Code, § 2103, providing that, if the case be resubmitted a defendant in custody shall remain so.</p> <p>Criminal Law (188)- — Time for Trial — Discharge for Delay— Waiver. Upon the state’s appeal from an order sustaining a demurrer to an information with leave to amend, the accused waives the statute requiring that he be brought to trial within sixty days, and cannot complain of a denial of a speedy trial guaranteed by Const., art. 1„ § 21, where he failed to apply for a trial within six