Opinion
No. 1826-B.
January 9, 1926.
A.G. Shoup, U.S. Atty., of San Jose, Cal.
James Wickersham, of Juneau, for defendant.
The plea is very elaborate, and drawn with great care, and clearly sets forth in detail the various steps in the criminal case before the justice, and raises the question whether a dismissal of a criminal action in the justice court, of a charge which is a misdemeanor only, is a bar to a prosecution by indictment by the grand jury subsequently for the same misdemeanor under our statute.
Chapter 29, title 15, Compiled Laws of Alaska 1913, provides for dismissal of action for want of prosecution or otherwise, and covers sections 2366 to 2372.
Section 2366 provides for dismissal when a person has been held to answer and indictment not found.
Section 2367 provides for dismissal after indictment found and trial not had at next subsequent term of court.
Section 2368 provides for continuance of cause and admission to bail in case an indictment was not found or trial not had.
Section 2369 provides for release from custody or return of bail on dismissal of the charge.
Section 2370 provides that the court may on its own motion or on the application of the district attorney, and in furtherance of justice, order an action after indictment to be dismissed, but in that case the reasons for the dismissal must be set forth in the order, which must be entered in the journal.
Section 2371 provides that the entry of nolle prosequi is abolished, and the district attorney cannot discontinue or abandon a prosecution for a crime, except as provided in the last section.
Section 2372 provides that an order for the dismissal of a charge or action as provided in this chapter is a bar to another prosecution for the same crime, if it be a misdemeanor; but it is not a bar if the crime charged be a felony.
It is urged by the defendant, as it is admitted by the demurrer, that the crime charged in the justice court and in the indictment is one and the same, and a misdemeanor only under section 2372, the demurrer must be overruled. On the part of the prosecution the claim is made that the section applies only to dismissals of actions after indictment in the district court, and not to dismissals of actions in the justice court initiated by filing a complaint and before trial had.
I have carefully considered the plea in view of our statute, and am of the opinion that section 2372, Compiled Laws, does not apply to the facts in the present case.
Section 2370 provides for dismissal of an action after an indictment is found, and that the reasons for dismissal "must be entered in the journal." This section, then, must refer to dismissals in the district court, and as no criminal case can be initiated in the district court, except by indictment, the only dismissal of an action brought in that court must be after indictment is found. All the other sections of the chapter also clearly show that the chapter applies only to proceedings before the district court.
Counsel for defendant cites the case of People v. Brown, 42 Cal.App. 462, 183 P. 829, a decision of the District Court of Appeal of California, First Division, in favor of defendant's contention. In this case a statute similar to section 2372 of our Compiled Laws was under consideration on a plea in bar to an indictment for a felony by a grand jury, based on the same assault on which a complaint had been filed and dismissed in the justice court. The court, in overruling the plea, said:
"In the justices' court, defendant by the complaint was charged merely with the commission of a misdemeanor, namely, that of battery. Hence, under the plain reading of the statute, the dismissal would have barred further prosecution upon a new charge for the commission of such misdemeanor. But the indictment charged a felony, * * *" and therefore was no bar.
The statement quoted by the learned court is a mere dictum, and, while it may be the law of California, it does not apply in this jurisdiction, because of the difference in the statutes.
Section 1384 of the Penal Code of California, in reference to dismissals, corresponds to section 2370 of our Compiled Laws, and provides that the court may, either of its own motion, or upon the application of the district attorney, and in furtherance of justice, order an action or indictment to be dismissed. Our statute provides only for dismissal after indictment. Under the California statute a dismissal in furtherance of justice is provided for at any time by any court; and in our statute only after indictment.
I am of the opinion, therefore, that while the California statute may well uphold the statement of the court in People v. Brown, ours would not uphold such statement. It is my opinion, in view of the whole statute, that the dismissals provided for in chapter 29, Compiled Laws 1913, refer only to dismissals in the district court, and that the bar mentioned in section 2372 refers only to dismissals made as provided in that chapter.
While the practice of initiating a criminal action in one court having jurisdiction, and dismissing it, and thereafter bringing the action in another court of concurrent jurisdiction for the same crime, is strongly to be condemned, yet there may be cases where the lack of evidence, or defect in the complaint, or other similar causes, would influence the prosecution to dismiss a criminal case pending before the justice court. To say that such dismissal before trial would be a bar to other prosecution before the district court upon an indictment found by the grand jury, perhaps upon competent testimony, would not in my judgment be a good precedent to establish, and was not the intention of the Legislature in making such enactment.
The demurrer to the plea in bar will be sustained.