State v. Bliss

• Decision Date: 01 March 1902
• Citation: 68 P. 87,27 Wash. 463
• Court: Washington Supreme Court
• Parties: STATE v. BLISS.

68 P. 87

27 Wash. 463

STATE v. BLISS.

Supreme Court of Washington

March 1, 1902

Appeal from superior court, Pierce county; W. H. Snell, Judge.

Oscar Bliss was convicted of grand larceny, and he appeals. Reversed.

John Leo and J. P. Cass, for appellant.

Fremont Campbell, Charles O. Bates, and Walter M. Harvey, for the State.

HADLEY J.

Appellant having been charged with the crime of grand larceny, was tried by a jury, found guilty, and sentenced to serve a term of seven years' imprisonment in the penitentiary. A demurrer was interposed to the information on the ground that it charges more than one crime. The demurrer was overruled, to which ruling the appellant excepted. A motion in arrest of judgment, based upon the same ground, was also denied, and exception thereto was duly taken. A motion for a new trial having been overruled judgment was entered as aforesaid, from which this appeal was taken. The charging part of the information is as follows: 'That the said Oscar Bliss, in the county of Pierce, in the state of Washington, on or about the 23d day of March, nineteen hundred and one, then and there being, unlawfully and feloniously did steal, take, and carry away one watch, of the value of thirty dollars, the personal goods and property of one Jennie R. Murray, two pearl studs, of the value of ten dollars, and one revolver, of the value of two dollars, the personal goods and property of C. A. Murray, all of said personal goods and property being of the aggregate value of forty-two dollars, contrary,' etc. It is assigned as error that the court overruled the demurrer to the information and denied the motion in arrest of judgment. Appellant urges, under this assignment of error, that the information charges two distinct and separate offenses,--one a larceny of the property of Jennie R. Murray, and the other a larceny of the property of C. A. Murray. It is urged that, to justify the consolidation of two larcenies as one crime, it should be alleged that both were committed at the same time and place. We think the position of appellant's counsel is well taken. Section 6842, 2 Ballinger's Ann. Codes & St., provides as follows: 'The indictment or information must be direct and certain as it regards * * * the crime charged.' Section 6844 of the same volume provides that: 'The indictment or information must charge but one crime and in one form only.' Thus, it is required by the latter provision that but one crime can be charged in the same indictment or information, and the former provision was evidently intended to require that the pleading must be so direct and certain as to the crime charged that there shall be no ambiguity which may lead an ordinarily reasonable mind into confusion as to what may be the actual crime intended to be charged. The information in this case clearly charges the taking of different property from two different persons. It is not alleged that the taking was at the same time and place. It is true it is alleged that the taking occurred in the county of Pierce, and on the 23d day of March, 1901, but for anything appearing upon the face of the information the two persons whose property is alleged to have been taken may have resided in parts of the county remote from each other, and the property may have been likewise situated. The property of one may have been taken in the early part of the 24-hour period or day denominated as March 23, and that of the other may have been taken in the latter part of such period or day. It is altogether possible for such a taking to have occurred in one instance in the early morning hours of the day at a given place in Pierce county, and in the other instance before midnight of the following night at a place in said county remote from the other. It will not be contended that such a state of facts would not constitute two separate and distinct crimes, and yet the language of this information is broad enough to cover such conditions. The information discloses that there were two separate and distinct ownerships of the property alleged to have been taken; and if it should be presumed that possession accompanied the ownership, still it cannot be presumed, without averment to that effect, that the possession was at one and the same place, and that the taking occurred at one and the same time, and as one act or offense. We think, therefore, that the demurrer to the information should have been sustained, and that it was error to deny the motion in arrest of judgment for the same reason.

It is also urged that the court committed error during the trial in giving to the jury the following instruction: 'You are instructed that if you believe from the evidence, beyond a reasonable doubt, that the property described in the information was stolen, and that the defendant was found in the possession of the stolen property described in the information, or a portion thereof, soon after it was stolen then such possession is a strong criminating circumstance tending to show the guilt of the defendant, unless the evidence and facts and circumstances proved show that he may have come honestly into the possession of the same.' It is contended that the above instruction is a comment upon the facts, and is in violation of the rule that the court shall declare...