State v. Hanover

Washington Supreme Court

State v. Hanover

104 P. 624, 55 Wash. 403, 1909 Wash. LEXIS 772

Washington Supreme Court·Decided October 29, 1909·No. No. 8375·Published·Cited by 12 cases

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Mount, J.

The appellant was prosecuted under the provisions of § 8 of the act of 1890, relating to the practice of medicine and surgery. He was charged with practicing medicine without a license, and was convicted and sentenced to pay a fine. He appeals from that judgment.

The state has made no appearance in the case in this court. The information alleges that the act was committed on October 86, 1908, in King county. A trial was had in the month of April, 1909. A judgment was entered against appellant on May 1, 1909. Between the date when the offense is charged to have been committed and the date of the trial, the state legislature passed a new act regulating the practice of medicine and surgery, and repealing prior acts. This last act contained an emergency clause, and took effect upon its approval, viz., March 18, 1909. Laws 1909, p. 677. This [405] act contained no saving clause for the prosecution of offenses committed under the old law. Under well-settled principles of law, there was no authority at the time of the trial for the prosecution of the appellant upon the offense charged. In State v. Oliver, 12 Wash. 547, 41 Pac. 895, the statute under which the defendant was prosecuted was repealed without a saving clause as to prior offenses, and this court held that the prosecution was barred. And in State v. Allen, 14 Wash. 103, 44 Pac. 121, where an act was repealed without any saving clause, pending an appeal to this court, it was held that a prosecution under the repealed act was barred, the court saying:

“It is familiar law that the repeal of a statute pending a prosecution thereunder, without any saving clause as to such prosecution, will prevent its being further prosecuted, and this rule applies as well after judgment and sentence, pending an appeal duly taken therefrom, as before the final determination in the trial court.”

The judgment appealed from must therefore be reversed, and the appellant discharged.

■ Rudkin, C. J., Crow, Parker, and Dunbar, JJ., concur.

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Mount, J.

The appellant was prosecuted under the provisions of § 8 of the act of 1890, relating to the practice of medicine and surgery. He was charged with practicing medicine without a license, and was convicted and sentenced to pay a fine. He appeals from that judgment.

The state has made no appearance in the case in this court. The information alleges that the act was committed on October 86, 1908, in King county. A trial was had in the month of April, 1909. A judgment was entered against appellant on May 1, 1909. Between the date when the offense is charged to have been committed and the date of the trial, the state legislature passed a new act regulating the practice of medicine and surgery, and repealing prior acts. This last act contained an emergency clause, and took effect upon its approval, viz., March 18, 1909. Laws 1909, p. 677. This [405] act contained no saving clause for the prosecution of offenses committed under the old law. Under well-settled principles of law, there was no authority at the time of the trial for the prosecution of the appellant upon the offense charged. In State v. Oliver, 12 Wash. 547, 41 Pac. 895, the statute under which the defendant was prosecuted was repealed without a saving clause as to prior offenses, and this court held that the prosecution was barred. And in State v. Allen, 14 Wash. 103, 44 Pac. 121, where an act was repealed without any saving clause, pending an appeal to this court, it was held that a prosecution under the repealed act was barred, the court saying:

“It is familiar law that the repeal of a statute pending a prosecution thereunder, without any saving clause as to such prosecution, will prevent its being further prosecuted, and this rule applies as well after judgment and sentence, pending an appeal duly taken therefrom, as before the final determination in the trial court.”

The judgment appealed from must therefore be reversed, and the appellant discharged.

■ Rudkin, C. J., Crow, Parker, and Dunbar, JJ., concur.

State v. Hanover, 104 P. 624, 55 Wash. 403, 1909 Wash. LEXIS 772 (Wash. 1909).

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