State v. Jewett , 1922 Wash. LEXIS 1074 ( 1922 )

Bridges, J.

The information charged that the defendants “did, wilfully, unlawfully and feloniously and with intent to deprive and defraud the owner thereof, take, steal and carry away . . . four (4) beef hides, four (4) calf hides and two (2) kip hides, the property of one Joe Just, and of the value of more than twenty-five dollars, ... From a judgment of sentence based upon a verdict of guilty, the defendants have appealed.

It appears that a criminal complaint was filed in the justice’s court of the county where the crime is alleged to have been committed, and that thereunder the appellants were placed under arrest for the purpose of having a preliminary hearing to determine whether they should be bound over to the superior court for trial; that thereafter the prosecuting attorney filed the information involved here, and, at the time the case was called for trial, the complaint in the justice’s court had not been dismissed and the appellants had not been given any preliminary hearing. Based upon this situation, the appellants contend that the court erred in proceeding to trial upon the information. Our statutes provide that all public offenses may be prosecuted in the superior courts by information filed by the prosecuting attorney. The criminal complaint charged a felony and the justice of the peace could only sit as a committing magistrate. The defense of former jeopardy could not grow out of such a proceeding. We have held that a preliminary hearing is not essential to the filing of an information. State v. McGilvery, 20 Wash. 240, 55 Pac. 115; State v. DePaoli, 24 Wash. 71, 63 Pac. 1102. Such being the case, the information may be filed after arrest, before a committing magistrate, but before a hearing there. The filing of the information in effect supersedes the proceeding before the magistrate. The court did not commit any error in this respect.

The next assignment of error is that the court proceeded to the trial of the case without requiring the state to furnish a hill of particulars as demanded by the appellants. This was a matter within the discretion of the court. In the case of State v. Bogardus, 36 Wash. 297, 78 Pac. 942, we said:

‘ ‘ The application for a bill of particulars is likewise without sanction in the statutes relating to criminal procedure. While statutes governing the civil procedure require that the courts may require a bill of particulars to be furnished in particular cases, yet this practice is not made applicable to criminal procedure, and, if the power rests in the courts at all when exercising jurisdiction in criminal cases, it must be found among its inherent powers. But whether or not the power does rest within the court, it is not necessary here to determine; for, conceding that it does, it is a discretionary power, ánd the refusal of the court to exercise it can be reviewed only for abuse of discretion, and we find no such abuse in the present record.”

The information here was very full and complete and furnished the appellants with such detailed information as that we cannot say the court abused its discretion in refusing to require the state to furnish a bill of particulars.

During the cross-examination of one of the state’s witnesses, the attorney for the appellants, addressing himself to the prosecuting attorney, said: “It is your duty to try to get the facts out, even if favorable to the' defendants. It is your duty to bring out the facts, not simply to get convictions regardless of the facts. ’ ’ To which the prosecuting attorney answered: “I will get every bootlegger and cattle thief in Skagit county, if I can. It is my business.” The appellants now set up error on this account. While the remark of the prosecuting attorney is not to be commended, yet we cannot see how it could in any wise prejudice the appellants. They were not charged with being cattle thieves or bootleggers. The remark was in answer to a thrust by tbe attorney of tbe appellants and tbe jury could not help but so understand it. Courts of appeal cannot reverse cases simply because of improper or inappropriate remarks made by attorneys in tbe case. Before we would be justified in so doing, we must be reasonably satisfied tbat sucb remarks were prejudicial to the interests of tbe defense.

Tbe chief argument made by tbe appellants for reversal is tbat tbe verdict of tbe jury was wrong and tbat there was not sufficient evidence to sustain it. We have been asked to read tbe testimony as it appears in tbe statement of facts. This we have. done. It appears tbat Mr. Just bad stolen from bis slaughterhouse four beef bides, four calf bides and two kip hides. Within a day or two after this theft, tbe appellants took some hides-to tbe city of Bellingham and there sold them, and tbe state claims tbat a part of tbe bides thus sold by tbe appellants were those which bad been stolen. As part of their defense, tbe appellants undertook to prove an alibi, and also tbat tbe bides which they sold in Bellingham bad been bought by them at various places. It must be admitted tbat they presented strong testimony in support of these defenses. On tbe other band, tbe state introduced testimony to show that, among tbe bides stolen, was a kip hide which was particularly and peculiarly marked; tbat all of tbe bides which tbe appellants bad sold at Bellingham bad been at once shipped east, and tbat, at tbe instigation of the sheriff, one of tbe kip bides was returned and it was introduced in evidence in this case. This kip bide was positively identified by several of tbe witnesses as one of tbe bides which appellants bad sold in Bellingham and as one which bad been stolen from Mr. Just. This furnished ample testimony to sustain tbe verdict. Tbe facts in a case of this character are for tbe jury and not for tbe court. It is true the state did not positively identify any other hide sold by appellants as being one which had been stolen. But all those sold had been at once shipped east and only the kip hide offered in evidence had been returned or again seen by any of the witnesses. But if the jury had a right to believe that appellants took the kip hide, it also had a right to believe that they took the other hides, because it was shown that they were all taken at the same time.

There was proof of guilt; the jury resolved that proof against appellants; the trial court refused to grant a new trial. Under these circumstances it is our duty to affirm the judgment, and it is so ordered.

Parker, C. J., Tolman, Fullerton, and Mitchell, JJ., concur.