State v. Adams

• Decision Date: 02 February 1906
• Citation: 41 Wash. 552,83 P. 1108
• Court: Washington Supreme Court
• Parties: STATE v. ADAMS.

83 P. 1108

41 Wash. 552

STATE v. ADAMS.

Supreme Court of Washington

February 2, 1906

Appeal from Superior Court, Lincoln County; W. T. Warren, Judge.

Walter Adams was informed against for rape. A demurrer to the information was sustained, and the state appeals. Reversed.

R. M Dye and E. A. Hesseltine, for the State.

Hibschman Meritt & Merritt, for respondent.

RUDKIN, J.

The information in this case charges that the defendant 'on the 28th day of October, 1905, at the county of Lincoln state of Washington, did unlawfully, feloniously, and forcibly, and against her will, ravish and carnally know Maud Stephey, then and there being, said Maud Stephey then and there being a female child under the age of 18 years, to wit of the age of 17 years.' To this information the defendant demurred 'on the ground that more than one crime is charged therein.' The demurrer was sustained and, the prosecuting attorney electing to stand on the information and refusing to plead further, judgment of dismissal was entered. From this judgment the state has appealed.

The statute defines the crime of rape as follows: 'A person shall be deemed guilty of rape who (1) shall, by force and against her will, ravish and carnally know any female of the age of 18 years or more; * * * (3) shall carnally know any female child under the age of 18 years.' Ballinger's Ann. Codes & St. § 7062. The appellant contends that this information charges but one crime under subdivision 3 of said section, and that the allegations of force and want of consent should be rejected as surplusage. The respondent, on the other hand, contends that the information charges the crime of rape under both the first and the third subdivisions, and that therefore two crimes are charged. It seems to us the demurrer was improperly sustained, whichever view we adopt. If the contention of the appellant be sustained, it is manifest that the information charges but one crime; and in our opinion the same conclusion follows if we adopt the views of the respondent. The statute defines but one crime and prescribes but one penalty therefor. Where a statute provides that crime may be committed in different ways or by different means, the act constitutes but a single offense, whether one or all of the ways and means be employed in its commission, and it is proper to charge in an information that the crime was committed in one of the ways or by one of the means specified in the statute, or in all the ways and by all the means conjunctively. The rule is thus stated in Enc. of Pl. & Pr vol. 10, p. 536: 'When a statute enumerates several acts in the alternative, the doing of any of which is subjected to the same punishment, all of such acts may be charged cumulatively as one offense. And where the statute provides in the alternative several means by which the offense may be committed, or where the intent or purpose is set out in several aspects disjunctively, they may all be charged in setting out one and the same offense.' In Fahnestock v. State (Ind.) 1 N. E. 372, the court said: 'When a statute makes it an offense to do some one or another act, naming them disjunctively, either of which would constitute one and the same offense, and amenable to the same punishment, all the acts may be charged conjunctively in the one court as constituting a single offense.' In People v. Harrold (Cal.) 24 P. 106, the court said: 'An indictment for forgery which enumerates each one of the series of acts, either one of which constitutes such crime under the Penal Code, charges but one offense, since under said section they all constitute but a single offense.' In People v. Gosset (Cal.) 29 P. 246, the court said: 'An indictment charging that defendant did deal, play, carry on, and conduct the game of faro, charges but one offense; Pen. Code, § 330, inflicting a penalty on every person who...