State v. Arndt

Decision Date05 August 1976
Docket NumberNo. 43612,43612
Citation553 P.2d 1328,87 Wn.2d 374
PartiesThe STATE of Washington, Respondent, v. Mildred L. ARNDT, Petitioner.
CourtWashington Supreme Court

Parker & Johnson, Omar S. Parker, Hoquiam, for petitioner.

Curtis M. Janhunen, Pros. Atty., David L. Edwards, Deputy Pros. Atty., Montesano, for respondent.

HOROWITZ, Associate Justice.

This case arises from a grand larceny conviction for fraudulent receipt of public assistance. The Court of Appeals affirmed the conviction. State v. Arndt, 12 Wash.App. 248, 529 P.2d 887 (1974). We affirm.

The defendant, having received public assistance for approximately 2 1/2 years, was charged with violating RCW 74.08.331. A copy of the amended information is set out in the opinion of the Court of Appeals. RCW 74.08.331 provides in part:

Any person who by means of a wilfully false statement, or representation, or impersonation, or a wilful failure to reveal any material fact, condition or circumstance affecting eligibility of need for assistance, including medical care, surplus commodities and food stamps, as required by law, or a wilful failure to promptly notify the county office in writing as required by law or (sic) any charge in status in respect to resources, or income, or need, or family composition, money contribution and other support, from whatever source derived, or any other change in circumstances affecting his eligibility or need for assistance, or other fraudulent device, obtains, or attempts to obtain, or aids or abets any person to obtain any public assistance to which he is not entitled or greater public assistance than that to which he is justly entitled shall be guilty of grand larceny and upon conviction thereof shall be punished by imprisonment in the state penitentiary for not more than fifteen years.

The charge was made with respect to allegations that the defendant's husband had returned home, that he was employed, that she paid no rent for her house and that her son who lived with her was employed and occasionally gave her money for food. The jury found the defendant guilty of grand larceny.

Defendant's primary contention is the trial court erroneously instructed the jury could find defendant guilty of one or more of the alternative means charged without a further requirement the jury agree unanimously as to the particular mode of commission. The jury was instructed, however, there must be a unanimous agreement defendant committed the crime of grand larceny as defined in RCW 74.08.331. In instructing the jury as to alternative means, the trial court used the language of the statute, stating that guilt could be based upon a finding defendant

Either made a false statement or representation of material facts, conditions or circumstances affecting her eligibility of (sic) need for assistance, Or that the defendant failed to reveal any material facts, conditions or circumstances affecting her eligibility of (sic) need for assistance, Or that the defendant failed to promptly notify the county office in writing as required by law of any change in status with respect to resources or income or money contributions from whatever source derived . . .

(Italics ours.)

The Court of Appeals rejected defendant's contention on the ground that when alternative means of committing a single crime are charged, and there is substantial evidence presented to support each of the alternative means, and the alternative means are not repugnant to one another, unanimity of the jury as to the mode of commission is not required. State v. Stuhr, 1 Wash.2d 521, 529, 96 P.2d 479 (1939); State v. Talbott, 199 Wash. 431, 437--38, 91 P.2d 1020 (1939); State v. Medley, 11 Wash.App. 491, 497, 524 P.2d 466 (1974) (rule approved but not applied). The Court of Appeals held: 'RCW 74.08.331 does not list multiple crimes, but merely one crime, grand larceny, which can be committed various ways.' State v. Arndt, supra, 12 Wash.App. at 252, 529 P.2d at 889. Therefore, the court held, since the several means charged are not repugnant to one another, the trial court was not required to instruct the jury to unanimously agree upon the particular mode or modes of commission.

We agree with the Court of Appeals that the resolution of this first issue requires a determination of whether RCW 74.08.331 describes (1) a single offense of grand larceny committable in more than one way, or (2) several separate and distinct offenses, each constituting grand larceny. As stated in State v. Kosanke, 23 Wash.2d 211, 213, 160 P.2d 541, 542 (1945):

(W)e 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.

Accord, State v. St. Clair, 21 Wash.2d 407, 413--14, 151 P.2d 181 (1944); State v. Adams, 41 Wash. 552, 83 P. 1108 (1906).

If RCW 74.08.331 falls within the first category, it is unnecessary to a guilty verdict that there be more than unanimity concerning guilt as to the single crime charged, I.e., grand larceny, regardless of unanimity as to the means by which the crime is committed provided there is substantial evidence to support each of the means charged. State v. Talbott, supra; State v. Stuhr, supra; State v. Medley, supra; State v. Carothers, 9 Wash.App. 691, 694 n.2, 514 P.2d 170 (1973); State v. Metcalf, 14 Wash.App. 232, 239, 540 P.2d 459 (1975). Cases from other states are generally to the same effect. People v. Nye, 63 Cal.2d 166, 173, 45 Cal.Rptr. 328, 403 P.2d 736 (1965); People v. Chavez, 37 Cal.2d 656, 670--72, 234 P.2d 632 (1951); People v. Nor Woods, 37 Cal.2d 584, 586, 233 P.2d 897 (1951); State v. Souhrada, 122 Mont. 377, 385, 204 P.2d 792 (1949); People v. Sullivan, 173 N.Y. 122, 127--30, 65 N.E. 989 (1903); State v. Flathers, 57 S.D. 320, 321--24, 232 N.W. 51, 72 A.L.R. 150 (1930). On the other hand, if RCW 74.08.331 falls within the second category, and the statute describes more than one crime, there must be a unanimous verdict as to each separate crime described. See People v. Failla, 64 Cal.2d 560, 567--69, 51 Cal.Rptr. 103, 414 P.2d 39 (1966), citing Inter alia, People v. Scofield, 203 Cal. 703, 709--11, 265 P. 914 (1928), and People v. Dutra, 75 Cal.App.2d 311, 171 P.2d 41 (1946). Also see People v. Thompson, 144 Cal.App.2d Supp. 854, 301 P.2d 313 (1956), also relying upon Scofield and Dutra.

There is a dictum in State v. Golladay, 78 Wash.2d 121, 137, 470 P.2d 191, 201 (1970), that even when a single crime is charged, a conviction requires the jury agree upon one of the means charged.

(T)he instructions must clearly distinguish the alternative theories and require the necessity for a unanimous verdict on either of the alternatives.

In Golladay, the defendant was charged with first degree murder committed by three alternative methods--Premeditation, felony-murder (rape) and felony-murder (larceny). The court found there was not sufficient evidence to establish the last method. A new trial was required, the court held, because the jury may have based its verdict on the felony-murder (larceny) method. There was, therefore, no need to discuss a situation where there is sufficient evidence to support each alternative means. However, since the dictum in Golladay has been relied on in several cases in which there was substantial evidence to support each means (see E.g., State v. Rogers, 5 Wash.App. 347, 351--52, 486 P.2d 1125 (1971); State v. Carothers, 9 Wash.App. 691, 694, 514 P.2d 170 (1973)), we overrule the Golladay dictum insofar as it is inconsistent with this opinion.

How can it be determined if RCW 74.08.331 describes a single offense committable in more than one way, or describes multiple offenses? What must be ascertained is the legislature's intent--whether 'the Legislature therein intended to define but one crime, that of (grand) larceny, and to state the different ways in which the crime might be committed.' State v. Pettit, 74 Wash. 510, 518, 133 P. 1014, 1018 (1913).

When the statute does not clearly answer this question upon its face, and there is need for interpretation, several tests are available.

(I)n determining the question, there may be many factors that will aid the court, such as (1) the title of the act; (2) whether there is a readily perceivable connection between the various acts set forth; (3) whether the acts are consistent with and not repugnant to each other; (4) and whether the acts may inhere in the same transaction.

State v. Kosanke, 23 Wash.2d 211, 213, 160 P.2d 541, 542 (1945). Let us examine each of these tests with respect to RCW 74.08.331. 1

(1) The title of the act. The title of RCW 74.08.331 as passed by the legislature (Laws of 1965, 1st Ex. Sess., ch. 34, p. 1762), states only the act relates to 'public assistance,' and is of no aid on this question. The heading and side annotation on the act, inserted by the code reviser pursuant to RCW 44.20.050, denominate the offense as 'PUBLIC ASSISTANCE _ _ FRAUD _ _ PENALTIES' (heading) and as 'Fraud in the procurement of public assistance . . . Penalties' (side annotation). Although these particular legends purport to describe statutory content and are inserted by the code reviser after passage of the act pursuant to statute for convenience of reference, and therefore may have little if any value in determining legislative intent (State ex rel. McGregor v. Rigg, 260 Minn. 141, 146, 109 N.W.2d 310 (1961); In re Chisholm's Will, 176 N.C. 211, 213, 96 S.E. 1031 (1918)), we think the code reviser has correctly summarized the statute as involving the single crime of public assistance fraud contemplated by the legislature.

House and Senate Journal entries from 1965 do refer to RCW 74.08.331 as 'setting...

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