STATE v. McCABE, 146 Wn. 626 (1927)

264 P. 15

THE STATE OF WASHINGTON, Appellant, v. A.C. McCABE, Respondent.

No. 21017. Department One.The Supreme Court of Washington.
February 20, 1927.

[1] INDICTMENT AND INFORMATION (72) — DUPLICITY — JOINING DIFFERENT OFFENSES. Under Rem. 1927 Sup., § 2059, it is proper to join in one information two counts for two distinct robberies committed at different times, where the accused is not thereby prejudiced.

Appeal from an order of the superior court for King county, Steinert, J., entered September 27, 1927, granting a new trial after a trial and conviction of robbery. Reversed.

Ewing D. Colvin and R.M. Burgunder, for appellant.

Warren Hardy, for respondent.

PER CURIAM.

The respondent was, in an information containing two counts, charged with two distinct crimes of the same class, namely, a robbery committed upon one Hennessy on January 28, 1927, and a robbery committed upon one Pond on March 25, 1927. Respondent’s motion for a separate trial on each count was denied; and after a trial upon both counts, to the same jury, a verdict of guilty upon each count was rendered. The trial court denied a motion for a new trial on July 6, 1927, and thereafter, upon application for a reconsideration, based upon the Departmental opinion of this court in State v. Brunn, 144 Wn. 341, 258 P. 13, the trial court, while holding that the respondent had not been prejudiced by the joinder, felt impelled to, and did, grant a new trial, by order dated September 27, 1927. From that order, the state has appealed.

Page 627

A rehearing was granted by this court in the Brunn case, and the decision of the court, sitting En Banc, was handed down November 2, 1927, and is reported in 145 Wn. 435, 260 P. 990.

[1] The En Banc opinion clearly overrules the Departmental opinion upon the matter of the joinder of two separate offenses, and lays down a rule to the effect that such joinder may be had, subject to the discretion of the trial court to grant separate trials, where necessary to preserve and protect the substantial rights of the accused.

It clearly appears from the record before us that the rights of the accused were not prejudiced by the joining of the two charges or by the trial on both charges at the same time and to the same jury. It follows that a new trial should not have been granted, and that the trial court was led into error by the error in our Departmental opinion.

The order of the trial court is therefore reversed, with instructions to enter judgment on the verdict of the jury.

Page 628