42 Wn.2d 503, THE STATE OF WASHINGTON, Appellant, v. FRETA LEE OLDS, Respondent

[No. 32142. Department One.      Supreme Court      April 28, 1953.]

THE STATE OF WASHINGTON, Appellant, v. FRETA LEE OLDS,
                               Respondent.1

[1] CRIMINAL LAW - APPEAL - RIGHT OF STATE TO APPEAL - VERDICT OF ACQUITTAL. The state has no right to an appeal where the defendant has been acquitted by a considered verdict of a jury; and such appeal will be dismissed, where it is based upon a claimed error regarding the selection of a jury which did not invalidate the jury or its verdict.

Appeal by the state from an order of the superior court for Yakima county, Willis, J., entered March 15, 1952, denying a motion to set aside a verdict of acquittal and for a new trial. Appeal dismissed.

W. R. Cole and Lincoln E. Shropshire, for appellant.

Steensland & Smith, for respondent.

OLSON, J. -

This defendant was charged and tried jointly with the defendant in State v. Tharp, ante p. 494. She was acquitted, and the state has appealed.

It seeks reversal of the order denying its "motion to set aside and arrest the verdict of the jury and motion for new trial" in this case, upon the same claim of error regarding the selection of the jury, and upon the same record that Tharp relied upon in his unsuccessful attack upon his conviction.

[1] The state has no right to an appeal, where the defendant has been acquitted by a considered verdict of a jury. Rule on Appeal 14 (8), 34A Wn. (2d) 22. We decided in the Tharp case that the claimed error did not invalidate this jury or its verdict. That decision controls our disposition of this case, and we need not discuss any other ground for our conclusion.

The appeal is dismissed.

GRADY, C. J., MALLERY, HILL, and WEAVER, JJ., concur.

1 Reported in 256 P. (2d) 488.

[1] See 157 A. L. R. 1065; 2 Am. Jur. 984.