(dissenting) — The melodramatic facets of this case may not be the major factor dispositive of it. However, the drama herein of human emotions — fact, fancy and foibles — is deserving of comment and explanation. The story (its setting, complications and implications) is revealed in two records: the record in this appeal and the record of a juvenile hearing, In re Penix, 63 Wn.2d 977, 387 P.2d 371 (1963).
*371Joe Camp, the defendant herein, was either 42 or 44 at the time of the alleged crime. He had employed Glenna May Penix as a bookkeeper. She was a junior high school dropout. Her records show that she did very poorly in school and failed to complete the eighth grade. After Glenna May had worked for Joe Camp for some time, romantic ideas or involvements came about. In March 1963, Glenna May and Camp told her parents that they were engaged and intended to marry. Parental reactions were limited apparently to a desire that the wedding be delayed until Glenna May was 18. The parents did not break up the engagement, nor did they try to stop their daughter from seeing Camp.
The plot thickened on March 9, 1963, when Officer Sylte and Officer Stamford, juvenile officers with the Everett Police Department, met with Joe Camp, Glenna May and her parents in the Penix home. The officers made themselves very explicit. They ordered Camp and Glenna May not to see each other unless they were in the presence of Glenna May’s parents. The juvenile record indicates that the police gave these orders to Camp at the direction of Glenna May’s parents. However, the record in this appeal indicates that the police undertook this activity because neighbors had complained about Camp and Glenna May embracing in a car in front of the Penix home. In any event, the order was given.
On April 12, 1963, Joe Camp and Glenna May did get married. That evening, Camp called Mr. Penix and told him that he and Glenna May were married. Camp also told Mr. Penix not to bother to call the police as there was nothing they could do. However, the authorities got wind of the marriage, and perhaps of the bellicose statement by Camp. They accepted the challenge apparently presented to them.
On April 18, 1963, just 6 days after the marriage, a complaint or a petition to declare Glenna May a dependent child was filed in the Juvenile Court. On April 19, 1963, Glenna May was ordered to be held in the detention facility of the Snohomish County Juvenile Court. On April 23, *3721963, after a hearing at which the parents at least appeared to be in the complainant category, the court declared Glenna May to be a dependent child. Thereupon, on August 7, 1963, the prosecutor, who had also interrogated the witnesses at the juvenile hearing, filed the information charging Camp with abduction.
On September 26, 1963, Camp was brought to trial. By that time, Glenna May’s parents had changed their minds. Through their own attorney they petitioned the court to dismiss the charges against Camp as they had decided to give the marriage a chance. The trial judge refused to dismiss the charges, giving the following reason:
Well, I am denying this motion for two reasons: Number one is that the sole discretion as to whether a motion for dismissal is made is based — in a criminal case — is based upon affidavits having to do with ends of justice best being served; and secondly, as I understand it, the complaining witness is a ward of the Court, am I correct in that Counsel? I should say, the girl involved here is a ward of the Court and any disposition concerning her person or even concerning any proceedings in which she may be involved must be performed subject to the approval of the Juvenile Court and she is a ward of the Court.
We have often held that trial court “discretion exercised upon untenable grounds is an abuse of discretion.” Malfait v. Malfait, 54 Wn.2d 413, 418, 341 P.2d 154 (1959); Gibson v. Von Olnhausen, 43 Wn.2d 803, 263 P.2d 954 (1953); High v. High, 41 Wn.2d 811, 252 P.2d 272 (1953); Berol v. Berol, 37 Wn.2d 380, 223 P.2d 1055 (1950); Holm v. Holm, 27 Wn.2d 456, 178 P.2d 725 (1947). RCW 10.46.090 provides:
The court may, either upon its own motion or upon application of the prosecuting attorney, and in furtherance of justice, order any criminal prosecution to be dismissed; but in such case the reason of the dismissal must be set forth in the order, which must be entered upon the record. (Italics mine.)
Here the trial judge in effect refused to exercise his discretion. He first stated that there was an absence of the *373required affidavits that a dismissal would be in the “furtherance of justice.” However, the statute, first of all, does not require any such affidavits. Secondly, the parents had decided not to oppose, but to go right along in favoring their daughter’s marriage to Camp, and they no longer wanted him prosecuted. Admittedly, their affidavits did not expressly state that the dismissal would be in the “furtherance of justice,” but it takes no great insight to realize that this was their belief. In fact, at the trial the parents testified repeatedly to the fact that they then had no objections to the marriage. It appears that the experience, such as it was, and the convictions, such as they were, of the parents, who had observed the parties since the marriage, were entirely ignored by the court. Definitely, by the time of the trial, Mr. and Mrs. Penix were reconciled with their daughter and her husband. All of the parties wanted to give the marriage a chance — all except the authorities, who may have been still laboring under the challenge uttered or flung at them by Mr. Camp on the evening of his marriage to Glenna May.
The trial court’s second reason for refusing to dismiss the charges is even more untenable. The trial judge stated (a) that Glenna May was a ward of the Juvenile Court, and, consequently, (b) “any proceedings in which she may be involved must be performed subject to the approval of the Juvenile Court and she is a ward of the Court.” This, I must stress, is certainly “discretion exercised upon untenable grounds.” Malfait v. Malfait, supra. Seemingly, the trial court was relying on the case of State v. Speer, 36 Wn.2d 15, 216 P.2d 203 (1950). In that case a girl of 14 was made a ward of the Juvenile Court and placed in the temporary custody of the mother of the defendant. The custody was expressly limited to providing for the physical needs of the girl, and the Juvenile Court reserved the right to make further additional orders concerning the welfare of the child. The defendant’s mother, who had custody of the girl, later gave consent to her son, age 41, to marry the girl. This court held that the consent of the defendant’s mother was insufficient. She had only a lim*374ited, temporary custody. The court held that only the Juvenile Court could have given the proper consent to the marriage, and, absent that consent, the defendant was guilty of abduction as charged under the statute.
The instant case is in no way similar to Speer. At the time of the marriage, Glenna May was entirely in the custody of her parents. She was made a ward of the Juvenile Court because she got married. Thus, the crime, if any, was committed against her parents, not against the peace and dignity of the Juvenile Court as in Speer. Therefore, it seems to me it was most significant that the parents petitioned the court to dismiss the charges against Camp, and it was highly immaterial whether or not the Juvenile Court authorities acquiesced in the petition to dismiss the charge against Camp.
Some might read the trial judge’s second reason for refusing to dismiss to mean that he thought the prosecutor would have to join in the motion to dismiss. The prosecutor, however, was the moving party in the juvenile proceedings against Glenna May, and those proceedings were well known to the trial judge. Also, the prosecutor vigorously opposed the petition of the parents to dismiss the action. In any event, under RCW 10.46.090, quoted above, the trial judge does not have to rely on a motion of the prosecutor in order to dismiss a prosecution. In this, our law is different from the common law and the statutory law of many of our sister states. See Power of Court to Enter Nolle Prosequi or Dismiss Prosecution, 69 A.L.R. 240 (1930). Our legislature has authorized the trial judge to dismiss a criminal prosecution on his own motion, even though the prosecutor still wants to proceed. The legislature has thus protected against arbitrary action by the prosecutor; and by requiring reasons for the dismissal to be entered in the record, the legislature has also provided protection against arbitrary action by the trial judge. Here, the trial judge could have simply dismissed the case and entered the reason in the record that the parents no longer object to the marriage.
*375To summarize: It seems to me that the trial judge was in error when he refused to exercise his discretion on the petition of the parents to dismiss the prosecution against their son-in-law. He refused to exercise his discretion because (1) the affidavits from the parents failed to state expressly that “justice would be served” by the dismissal; and (2) the juvenile authorities, or (3) the prosecutor did not consent to the dismissal. To me these are “untenable grounds” involving abuse of discretion by the trial judge.
For the above reasons, I would reverse the conviction of the defendant and remand the case for dismissal on the present record. With the passage of time there are certainly new matters which the trial judge may wish to consider. Glenna May Camp is now past 19, and the defendant’s counsel assured this court in oral argument that she is living happily with the defendant' as his wife. In a recent case, also dealing with a trial court’s exercise of discretion in the dismissal of charges, Judge Hill aptly quoted the United States Supreme Court, stating that the courts must have a “fastidious regard for the honor of the administration of justice.” State v. Satterlee, 58 Wn.2d 92, 361 P.2d 168 (1961). He emphasized the role of the courts in effectuation of a reasonable balance between the rights of society and the rights of the individual. I think the trial judge should reconsider his action in the instant case in light of the wisdom expressed in Satterlee.
I can understand the motivation of the juvenile authorities and the prosecutor in trying to separate a 17-year-old girl from a 42 or 44-year-old man. Apparently, they were trying to protect the girl from what appeared to be a certain tragedy, and they were also trying to foster in this respect what appeared to be a generally settled and accepted social policy. Nevertheless, I am convinced that the authorities continued their crusade beyond the point of the state’s proper and legitimate interest when they continued to prosecute Camp for a technical crime that was based on the lack of parents’ consent — after the parents had changed their minds and had consented to the mar*376riage. When the parents dropped out of the crusade, the continued march of the authorities became oppression. This case turns on consent, and I feel that the authorities have concentrated on only certain facets or aspects of the factor of consent in this case. While it may have been true that there was a lack of parental consent at the time of the marriage, nevertheless, by the time things simmered down, the parents had consented. At this point, the crime against society, if any, was minimal, and a “fastidious regard for the honor of the administration of justice” could well have called for a dismissal of a charge of abduction.
I would reverse the conviction and dismiss the case for the reasons stated.
January 11, 1966. Petition for rehearing denied.