On Rehearing.
A rebearing having been granted in this case, En Banc, a majority of the court have concluded that the Departmental opinion reported in 112 Wash. 201, 191 Pac. 831, should be.rewritten. For the history of the case and the questions involved, see the Departmental opinion above cited.
We believe that the result was correct but the first reason stated therefor was erroneous.
The statutes which provide that a defendant may plead guilty of any offense charg'ed against him (Rem. Code, § 1929), provides also that in all cases where the offense charged involves an injury to a particular person who is within the county it shall be the duty of the justice of the peace to summon the injured person and enforce his attendance at the trial, if necessary; and further, that no justice shall assess a fine or enter a judgment until a witness or witnesses have been examined to state the circumstances of the transaction. (Rem. Code, §§ 1930-1931.)
These are positive mandates to a justice of the peace having a complaint made to him of an assault involving an injury to a particular person within his county. The evident purpose of these statutes was to prevent collusion and inadequate punishment in cases of assault. A justice of the peace has no more power or jurisdiction to assess a fine or enter a judgment until after he has summoned the injured party and enforced his attendance at the trial and heard the testimony of a witness or witnesses to state the circumstances of the assault, than he has to proceed in any criminal case without a complaint first being made to him. It is not a mere formality or directory matter that is required by the statute. It is a matter of substance and a matter of jurisdiction. It is unlike the case we had before us of In re Casey, 27 Wash. 686, 68 Pac. 185, where in a trial before a justice with a jury, the jury rendered a
Nor can it be said that, because the record offered by the state was silent as to those steps, it must be presumed that the justice proceeded properly under the statute. It is elementary law that a court which is not a court of record must show its jurisdiction by showing that the steps specified by law necessary to sustain its jurisdiction, were taken. In this case the record is silent as to those steps necessary to sustain the jurisdiction of the justice to enter any final judgment, and therefore it cannot be presumed that he had power sufficient to proceed to judgment. The injured party
Tolman and Main, JJ., concur.