
    [No. 4498.
    Decided July 20, 1903.]
    The State of Washington, Respondent, v. P. Durbin, Appellant.
    
    CRIMINAL LAW-DISMISSAL-BAR TO ANOTHER PROSECUTION.
    Under Bal. Code, § 6916, providing that an order of dismissal is a bar in tbe ease of a misdemeanor, but tbat it is not a bar if tbe offense charged be a felony, tbe voluntary dismissal of an information for' assault and battery is a complete bar to a conviction for assault and battery, under a subsequent information charging the same facts as constituting tbe crime of attempting to commit mayhem. (Dunbar dissents.)
    Appeal from Superior Court, Lincoln County. — Hon. Charles H. Heal, Judge.
    Reversed.
    
      
      Martin & Grant, for appellant.
    
      N. T. Caton, Prosecuting Attorney, and Myers & Warren, for the State.
   The opinion of the court was delivered by

Fullerton, C. J.

On August 9, 1901, the prosecuting attorney of Lincoln county filed an information against the appellant, charging him with assault and battery committed on the person of one Thomas Atnery. A warrant was issued thereon, and the appellant arrested, and placed under bonds to answer the charge at the next jury term of the superior court. On October 2, 1901, the prosecuting attorney filed another information against the appellant, reciting the same acts 'on which the charge of assault and battery was founded, and charging him with the crime of attempting to commit mayhem. A warrant was issued on this information, and the defendant again arrested, and placed under bonds. On October 25th, thereafter, the prosecuting attorney moved a dismissal of the charge of assault and battery, and the same was granted by the court on the ground, as recited in the order, “that another charge is placed against the defendant.” After-wards, when the appellant was required to plead to the information charging him with attempt to commit mayhem, he entered a plea of a former acquittal of the offense charged, and on the trial introduced the record showing the filing of the information against him for assault and battery, his arrest thereunder, and the subsequent dismissal of the action, and requested an instruction of acquittal. The court refused to give the requested instruction, and charged the jury, in effect, that the dismissal of the action for assault and battery did not constitute a bar to the prosecution for the charge of felony; charging them further that they could, find the appellant guilty of assault and battery in ease they should fail to find that the higher crime was made out. The jury returned a verdict of assault and battery, on which the judgment and sentence appealed from was pronounced.

Of the errors assigned the only one we have found it necessary to notice is the ruling of the court holding that the dismissal of the action of assault and battery did not constitute a bar to another prosecution for the same offense. In this we think the trial court was in error. By §6914 of the Code (Ballinger’s) the court may, either upon its own motion or upon application of the prosecuting attorney, and in furtherance of justice, order an action, after an indictment or information, to be dismissed; but must set forth in the order of dismissal, the reason for the same, which must be entered upon the record. By §6915, the entry of a nolle prosequi is abolished, and no prosecuting attorney is permitted to discontinue or abandon a prosecution except as provided in the preceding section cited. By §6916, it is provided that “An order for dismissal as provided in this chapter is a bar to another prosecution for the same offense, if it be a misdemeanor; but it is not a bar if the offense charged be a felony.” It is manifest that the statute meant to make the dismissal of a prosecution for a misdemeanor after an indictment had been returned or an information filed equivalent, in so far as a bar to another prosecution was concerned, to a trial on the merits and a verdict and judgment of conviction or acquittal. We cannot understand how any other meaning can be given to the language of the statute. A dismissal under such circumstances is a bar to a subsequent prosecution for the same offense, and a judgment of conviction or acquittal after a trial upon the merits is not more. As the case stood at the ■time of the trial, therefore, the appellant was-being tried 'for. an offense, after he had- been acquitted for a minor offense included within that offense, and the pertinent question is, will an acquittal for a minor offense included in a greater bar a prosecution for the greater? The question is not answered alike in all jurisdictions, hut it seems to us that the weight of authority, as well as the • better reason, are with the rule that it is such a bar. The eases on the question will he found collected in 17 Am. & Eng. Enc. Law, pp. 599-601, wherein will he found also the rules and the reasons given therefor.

There is nothing in the case of State v. Armstrong, 29 Wash. 57 (69 Pac. 392), or State v. Lewis, 31 Wash. 75 (71 Pac. 778), which is contrary to the position we have taken in this case. In those eases the prosecutions dismissed were charges of felony, and the statute expressly provides that, if the offense charged he a felony, its dismissal is not a bar to another prosecution for the same offense. The distinction may not he founded on any sound reason, but this is not a sufficient cause for ignoring the statute. The law is of the legislature’s making, not the court’s, and the court can do nothing less than give it force when its meaning is once ascertained.

The judgment appealed from is reversed, and the cause remanded with instructions to discharge the appellant.

Hadley and Motjjtt, JJ., concur.

Dunbar, J.

(dissenting) — I dissent. I think the statute simply intended to announce the plain proposition that an order for dismissal bars another prosecution for the same offense in cases of misdemeanor, and that no other question is involved in the enactment. If the appellant had been tried for assault and battery, after that charge had been dismissed, the second trial would have been illegal under the statute cited; but I do not think the statute should he construed further than its language imports. ■  