(dissenting)—I am unable to concur in that portion of the opinion of the court which holds that appellant cannot successfully raise the question of former jeopardy simply because the complaint, technically read, failed to charge him with a crime. Here we have a man arrested upon a criminal complaint, tried, found guilty, fined, and the fine paid. Later, he is charged by information with the very crime of which he was convicted, and the judgment of which he has paid, and he is not permitted to plead former jeopardy because the complaint upon which he was found guilty was insufficient to state a crime according to the rules of law.
This does not seem to me to be right or fair. Under that theory, one pays the penalty of a crime because he is unable to foresee that the courts will later hold that he was not legally convicted. If this rule is applicable to misdemeanors, it is likewise applicable to *205more serious offenses, and thus it might be that one would be required to serve two terms in the penitentiary for one offense. As I read the case of State v. George, 84 Wash. 113, 146 Pac. 378, upon which the court’s opinion is largely based, it is not applicable to the facts of this case. It would be in point if the appellant had appealed from the judgment of convicimposed upon him, was thereafter indicted for the the complaint insufficient. In that case the defendant was convicted; he appealed to this court, and we held that the complaint did not state facts sufficient to constitute a crime and we ordered the case dismissed. He was later arrested and put to trial on a sufficient information. At that trial he entered a plea of former conviction, which was denied. Upon appeal we upheld that ruling.' It seems to me that there is a vast distinction between that case and this one. Here the state, having caused the appellant’s arrest and conviction, and having caused sentence to be imposed upon him and required him to discharge the same, it is in no position to say that the whole proceeding amounted to nothing simply because the complaint, under which he was convicted, did not legally charge a crime. In the case of Commonwealth v. Loud, 3 Metc. (Mass.) 328, 37 Am. Dec. 139, the facts were that the defendant, who was convicted in the court of the justice of the peace, and who paid the fine there imposed upon him, was thereafter indicted for the same offense, and on trial, under the indictment, offered to prove the record and proceedings of his prior conviction before the justice of the peace as a bar, which offer was denied him. I cannot do better, nor as well, than to give my ideas in the language of the court in that case:
“But in the case at bar, the defendant waived any exception to the judgment, complaint, proceedings, or *206sentence; and he has performed the sentence. The commonwealth now desire to have those proceedings held for nothing, so that, by an indictment in technical and legal form, the defendant may be again tried and punished for the same offense of which he has been informally convicted. We cannot think those proceedings before the magistrate were merely void. On the contrary, it is reasonable to believe, that the complainant intended to prosecute for a larceny. The defendant understood it so, and so did the magistrate. Now the judgment that the defendant was guilty, although upon proceedings which were erroneous, is good until the same be reversed. This rule of criminal law is well settled. . . . But he might well waive the error and submit to and perform the judgment and sentence, without danger of being subjected to another conviction and punishment for the same offense.”
See, also, Commonwealth v. Keith, 8 Metc. (Mass.) 531, 8 R. C. L. 140.
I therefore dissent.