81 P. 721 (Wash. 1905), State v. Nelson

Citation:81 P. 721, 39 Wash. 221
Opinion Judge:RUDKIN, J.
Party Name:STATE v. NELSON.
Attorney:[39 Wash. 222] James E. Bradford, for appellant. Mackintosh and Hermon W. Craven, for the state.
Judge Panel:MOUNT, C.J., and FULLERTON, HADLEY, and CROW, JJ., concur. ROOT, J., concurs in the result.
Case Date:July 18, 1905
Court:Supreme Court of Washington

Page 721

81 P. 721 (Wash. 1905)

39 Wash. 221




Supreme Court of Washington

July 18, 1905

         Appeal from Superior Court, King County; Geo. C. Hatch, Judge.

         P. H. Nelson was convicted of living in a state of adultery, and appeals. Affirmed.

         [39 Wash. 222] James E. Bradford, for appellant. Mackintosh and Hermon W. Craven, for the state.

         RUDKIN, J.

         The defendant was convicted of the crime of living in a state of adultery, and prosecutes an appeal from the judgment and sentence of the court. The information recites that the appellant is accused of the crime of adultery, committed as follows: 'He, the said P. H. Nelson, in the county of King, state of Washington, on the 25th day of May, 1903, and thence [39 Wash. 223] continuously until about the 15th day of July, 1903, did willfully, unlawfully, and feloniously live and cohabit in an open and notorious state of adultery with one Paulina Smith, and did than and there have carnal knowledge of the body of the said Paulina Smith, the said Paulina Smith being then and there a female person other than the wife of the said P. H. Nelson, and being then and there the lawful wife of Barney Smith, then and there living in Alaska, and the

Page 722

said P. H. Nelson having then and there a lawful wife living in Seattle, King county, Washington, to wit, one Julia Nelson.' The appellant urges several objections to the sufficiency of this information.

         1. It is claimed that the information charges the crime of adultery, and that there is no such crime under the laws of this state. True, the information recites that the appellant is accused of the crime of adultery, but the sufficiency of an information does not depend upon the name by which the prosecuting officer may designate the crime. A wrong designation of the crime charged, or the absence of all designation, will not vitiate an information which is otherwise sufficient. The information before us plainly charges the crime of living in a state of adultery, under section 7231, Ballinger's Ann. Codes & St., and is therefore sufficient.

         2. It is claimed that it is uncertain whether the information charges a crime under sections 7230, 7231, or 7238, Ballinger's Ann. Codes & St. Section 7230 defines adultery, but does not define any crime or prescribe any penalty. Section 7231 defines the crime of living in a state of adultery. Section 7238 defines the crime of lewd and vicious association and cohabitation by unmarried persons, or open and gross lewdness or indecent or obscene exposure of his or her person, or of the person of another, by any man or woman, married or unmarried. It seems to us a person of common understanding can readily understand what is intended by this information, and what crime is charged. If so, the requirements of the law are satisfied.

         [39 Wash. 224] 3. It is claimed that Paulina Smith should have been joined as a defendant. This was unnecessary. Bishop, Statutory Crimes (3d Ed.) § 670; Wharton, Criminal Law (10th Ed.) § 1730; 1 Ency. Pl. & Pr. p. 308; State v. Dingee, 17 Iowa, 232.

         4. It is urged that the information is uncertain as to time. Where an information charges a continuing offense, such as living in a state of adultery, it is proper to allege the commission of the crime between certain dates, as was done in this case. State v. Way, 5 Neb. 283; Commonwealth v. Wood, 4 Gray (Mass.) 11.

         5. Again, it is urged that the information is bad for duplicity. This assignment is answered by what has been said as to uncertainty as to the crime charged, as is also the further assignment that the court should have required the state to elect between the different crimes charged. As we view the information, it charges but one crime, in one form only.

         6. It is claimed that the appellant was not furnished with a copy of the information. The order of arraignment recites that a certified copy of the information was delivered to the appellant in open court, and this record cannot be contradicted by an ex parte affidavit.

         7. It is assigned as error that the court admitted testimony relating to the conduct of the appellant and his alleged paramour three months prior to the date alleged in the information. In this class of cases such testimony is always competent. Underhill, Criminal Evidence, p....

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