48 Wn.2d 513, THE STATE OF WASHINGTON, Plaintiff and Relator, v. JAMES DAVIS, Defendant, THE SUPERIOR COURT FOR WALLA WALLA COUNTY, Glenn L. Bean, Judge, Respondent
[Nos. 33514, 33515, 33516, 33517. Department Two.      Supreme Court      March 15, 1956.]
THE STATE OF WASHINGTON, Plaintiff and Relator, v. JAMES
                DAVIS, Defendant, THE SUPERIOR COURT FOR WALLA
                WALLA COUNTY, Glenn L. Bean, Judge, Respondent.
THE STATE OF WASHINGTON, Plaintiff and Relator, v.
                KENNETH GEORGE, Defendant, THE SUPERIOR COURT FOR
                WALLA WALLA COUNTY, Glenn L. Bean, Judge,
                               Respondent.
THE STATE OF WASHINGTON, Plaintiff and Relator, v. CHARLES
               LAMBERT, Defendant, THE SUPERIOR COURT FOR WALLA
                WALLA COUNTY, Glenn L. Bean, Judge, Respondent.
THE STATE OF WASHINGTON, Plaintiff and Relator, v. RUSSELL
               SUMMERS, Defendant, THE SUPERIOR COURT FOR WALLA
               WALLA COUNTY, Glenn L. Bean, Judge, Respondent.«1»

[1] CRIMINAL LAW - CERTIORARI - NATURE AND GROUNDS - INADEQUACY OF REMEDY BY APPEAL - ORDER APPEALABLE BY STATE. In a criminal case, when the state can satisfy the supreme court that an appeal is not an adequate remedy, the supreme court will issue a writ of certiorari for the review of an order of the superior court from which the state could appeal.

[2] SAME. Where defendants were charged in separate informations with conspiracy to kidnap and prison riot, certiorari on behalf of the state lies to review the trial court's order quashing the counts charging conspiracy to kidnap, since the remedy by appeal would be inadequate; it appearing that an appeal, if prosecuted before the trial of the counts charging prison riot, would entail a long delay and prevent the speedy trial guaranteed by Const. Art. I, § 22, and that such an appeal, if prosecuted after either conviction or acquittal on the counts alleging prison riot, would be of dubious value, even if successful, because of problems relating to former jeopardy.

[3] CONVICTS - CRIMES - STATUTORY PROVISIONS. Chapter 241, Laws of 1955, relating to crimes of prisoners of state penal institutions, defines and fixes the penalty for "prison riot," "possession of contraband," "interference with laboring prisoners," and "the giving of narcotics and firearms to a prisoner," and purports to define and fixes the penalty for "the holding of hostages," each of the five being a distinct offense and carrying its own penalty; and there is no basis for the contention that "the holding of hostages" is included in "prison riot."

The trial court sustained demurrers and granted motions to quash directed against the count charging kidnaping in the Lambert information and against the count charging conspiracy to kidnap in each of the four informations, leaving one count against each defendant, i.e., prison riot.

The state sought and was granted a writ of certiorari in each case for a review of the order quashing the counts charging kidnaping and conspiracy to kidnap. The defendants have moved to quash the writs.

[2] An appeal, if prosecuted before the trial of the counts alleging prison riot, would entail a long delay and prevent that to which society is entitled and of which the defendants have a constitutional guarantee, i.e., a speedy trial. Constitution, Art. I, § 22. Such an appeal, if prosecuted after either conviction or acquittal on the counts alleging prison riot, would be of dubious value, even if successful, because of problems relating to former jeopardy. The delay, the inconvenience, and the expense of a series of trials arising out of the same transactions or connected transactions were the reasons for remedial legislation in 1925. Laws of 1925, Ex. Ses., chapter 109, § 1, p. 168 (Rem. Rev. Stat., § 2059 [cf. RCW 10.37.060]). It is obvious, therefore, that, if the state had a right to join the kidnaping and conspiracy counts to the counts charging prison riot as arising out of the same transaction or connected transactions, appeal would not be an adequate remedy. The motion to quash the writs of certiorari is accordingly denied.

We are confronted with a most unusual situation. By chapter 241 of the Laws of 1955, p. 1007 (RCW 9.94.010 - 9.94.060), it was intended to designate and define three offenses chargeable to prisoners of state penal institutions and two other offenses chargeable to "any person." The title of that chapter reads:

[3] "Prison riot" is defined and the penalty therefor is fixed in §§ 1 and 2 of the act. RCW 9.94.010, 9.94.020. "The holding of hostages" is purportedly defined and the penalty fixed in § 3 of the act. RCW 9.94.030. (The significance of "purportedly" is explained later.) "Possession of contraband" is defined and the penalty fixed in § 4 of the act RCW 9.94.040. "Interference with laboring prisoners" and "the giving of narcotics and firearms to a prisoner" are defined and the penalty for each is fixed in § 6 of the act. RCW 9.94.060. Each of the five is a distinct offense, and each carries its own penalty. There is no basis for the state's position that "the holding of hostages" is included in "prison riot."

The trial judge was unquestionably of the opinion - and we think justifiably so - that the legislature intended, by § 3 of chapter 241 (RCW 9.94.030), to supersede the kidnaping statute, if ever applicable, in the situation where an inmate of a state penal institution holds or participates in holding an officer of that institution as a hostage by force or violence or the threat thereof.

In addition to the count charging prison riot, each of the defendants was charged with entering into an "agreement, confederation and conspiracy" with named co-conspirators to "seize, confine and inveigle" named victims,

". . . with intent to cause them without authority of law to be secretly confined and imprisoned and to cause them to be held to service with intent to extort or obtain a reward for their release or disposition."

While each defendant is alleged, in the prison riot charge, to be an inmate of the Washington state penitentiary, none of his co-conspirators are alleged to be such inmates, and none of the victims whom the conspirators intended to be

"Where general and special laws are concurrent, the special law applies to the subject matter contemplated by it to the exclusion of the general law."

If the completed offense would not be kidnaping, there would, of course, be no conspiracy to kidnap.

[5] Unfortunately, the issues here presented must be determined upon a basis not suggested by either the state or the defendants and which did not suggest itself to this court until, in the preparation of this opinion, an analysis of § 3 of chapter 241, Laws of 1955, disclosed that it defines no offense and makes nothing unlawful. We quote the section verbatim:

"Whenever any inmate of a state penal institution shall hold, or participate in holding, an officer of such institution