State v. Kosanke

• Decision Date: 28 June 1945
• Docket Number: 29561.
• Parties: STATE v. KOSANKE.
• Court: Washington Supreme Court

160 P.2d 541

23 Wn.2d 211

STATE v. KOSANKE.

No. 29561.

Supreme Court of Washington

June 28, 1945

Department 1.

Reinhold Kosanke was convicted of indecent assault and exposure to a female person under age of fifteen years, and he appeals.

Affirmed.

Appeal from Superior Court, Adams County; Matt Driscoll, judge.

Michael J. Kerley, of Spokane, for appellant.

Edward C. Cross, of Ritzville, for respondent.

GRADY Justice.

The appellant, Reinhold Kosanke, was charged in an amended information with the crime of indecent assault and exposure as defined by Laws of 1937, chapter 74, § 2 Rem.Rev.Stat.Supp. § 2442. A trial Before a jury resulted in a verdict of guilty, and from the judgment entered thereon the defendant has taken an appeal to this court.

By the act of 1937 the legislature amended certain sections of the criminal statutes and define three different crimes: (1) Carnal knowledge of children; (2) indecent assault and exposure; (3) crime against nature. The title of the act is as follows: 'An Act relating to the crimes of carnal knowledge of children, crime against nature and indecent assault and exposure and amending sections 2436, 2442 and 2456 of Remington's Revised Statutes.'

The amended information charged a violation of subdivision 2 of § 2 of the act which reads as follows: 'Every person who shall take any indecent liberties with or on the person of any female under the age of fifteen years, or make any indecent, or obscene exposure of his person, or of the person of another, whether with or without his or her consent, shall be guilty of a felony, * * *.' and was to the effect that appellant took indecent liberties with or on the person of a named female child and in her presence did at the same time make an indecent exposure of his person. Rem.Rev.Stat. § 2458, also penalizes the making of any open and indirect or obscene exposure of his person or of the person of another and makes the offense a gross misdemeanor.

By demurrer and other challenges to its sufficiency throughout the trial appellant contended that the amended information was duplicitous in that it charged him with two felonies under one statute--taking indecent liberties with or on the person of a female under the age of fifteen years and making an indecent or obscene exposure of his person to her also with a gross misdemeanor by making an open and indecent or obscene exposure of his person under another statute.

An examination of the statutes referred to and the amended information discloses that no attempt was made to charge appellant with a violation of § 2458, Rem.Rev.Stat. That statute relates to indecent or obscene exposure generally, while § 2442 (2), Rem.Rev.Stat.Supp., is limited to indecent or obscene exposure to female persons under the age of fifteen years. The amended information therefore is not open to the attack that it is duplicitous in that it charges offenses under § 2442 and § 2458.

In passing upon a claim of duplicity in an information we must have in mind that there are two classes of criminal statutes to be considered. One class defines a specific crime, or makes a certain act or acts a felony or misdemeanor, or either, or both, and provides different ways in or means by which the crime may be committed, all in one statute, and the other class may set forth several distinct acts and make the commission of each a separate crime, all in one statute.

There are many cases decided by this court in which we have construed statutes as falling within one class or the other. It is pointed out in them that in determining the question there may be many factors that will aid the court, such as the title of the act; whether there is a readily perceivable connection between the various acts set forth; whether the acts are consistent with and not repugnant to each other; and whether the acts may inhere in the same transaction. It would serve no useful purpose to cite all of the cases bearing on this subject, but illustrations of the first class of statute are to be found in State v. Pettit, 74 Wash. 510, 133 P. 1014; State v. Gipson, 92 Wash. 646, 159 P. 792; State v. Powers, 152 Wash. 155, 277 P. 377; State v. Hull, 182 Wash. 681, 48 P.2d 225; State v. St. Clair, 21 Wash.2d 407, 151 P.2d 181, and of the other in Seattle v. Molin, 99 Wash. 210, 169 P. 318, and State v. Johnson, 20 Wash.2d 494, 148 P.2d 320.

Tested by the rules set forth in our cases it is clear that § 2442(2), Rem.Rev.Stat.Supp., upon which the amended information was based falls within the first class mentioned. That statute makes it a felony for a person to take any indecent liberties with or on the person of any female under the age of fifteen years, or to make to her any indecent or obscene exposure of his person. Either or both acts constitute the offense. The rule of pleading under such a statute was pronounced by us in State v. Norgard, 183 Wash. 208, 48 P.2d 618, 620, as follows: 'The law has long been well settled in this state that where in defining an offense, the statute enumerates a series of acts, either of which separately, or all together, constitute the offense, all such acts may be charged in a single count for the reason that, notwithstanding each act may by itself constitute the offense, all of them together do no more and likewise constitute one and the same offense.'

The amended information therefore was not open to the objection that it was duplicitous.

The other assignment of error is that the prosecuting attorney was permitted to adduce testimony as to the fact of a conversation had between the wife of appellant and the parents of the prosecuting witness, and also with reference to activities of his wife in efforts to persuade the parents of the child not to testify at the trial of appellant.

The background of this assignment of error is that on cross-examination of appellant he was interrogated as to claimed efforts on the part of himself and his wife to persuade the parents of the child to move to the state of Idaho and take her with them so that they could not be required to attend his trial, and as to conversation he had with his wife on this subject.

This was not proper cross-examination as the subject had not been referred to during the direct examination of appellant, but none of it was objected to at any time.

In considering this assignment of error we think it only fair to counsel who has presented the case to this court to say that he did not represent the appellant at the trial of the case in the superior court, and it therefore has been necessary for him to present the appeal on the record as it came to him.

Any claim of error in respect to the cross-examination that might have been made cannot now be reviewed because of the failure to make appropriate objection. State v. Paysse, 80 Wash. 603, 142 P. 3; State v. Murphy, 101 Wash. 425, 172 P. 544; State v. Jensen, 114 Wash. 401, 195 P. 238; State v. Miles, 154 Wash. 412, 282 P. 485.

The respondent called the parents of the child as witnesses and they testified as to the contacts the appellant and his wife had made with them and what occurred at such times, also a witness who testified to a conversation he heard between appellant and his wife. None of this testimony was objected to. The same rule stated above also applies to this evidence.

The evidence was relevant and material....