State v. George

• Citation: 79 Wash. 262,140 P. 337
• Decision Date: 27 April 1914
• Docket Number: 11,540.
• Parties: STATE v. GEORGE.
• Court: United States State Supreme Court of Washington

140 P. 337

79 Wash. 262

STATE v. GEORGE.

No. 11,540.

Supreme Court of Washington

April 27, 1914

Department 1. Appeal from Superior Court, King County; Mitchell Gilliam Judge.

Nick George was convicted of attempting to commit the crime of sodomy, and he appeals. Reversed and remanded, with instructions to sustain the motion to arrest of judgment.

Thos F. Murphine and Harry Sigmond, both of Seattle, for appellant.

John F Murphy and Thos. J. L. Kennedy, both of Seattle, for the State.

CHADWICK J.

Defendant is charged with having attempted to commit the crime of sodomy. The charging part of the information is that he 'unlawfully and feloniously did attempt to carnally know one _____, a living human being by the annus.' When the case was called for trial defendant demurred and objected to the introduction of any evidence on the ground that the information does not state facts sufficient to constitute a crime. This objection was overruled by the court. It was renewed upon a motion in arrest of judgment. The state contends that the objection came to late, citing State v. Blanchard, 11 Wash. 116, 39 P. 377; State v. Bodeckar, 11 Wash. 417, 39 P. 645; State v. Phillips, 65 Wash. 417, 118 P. 43; State v. McBride, 72 Wash. 390, 130 P. 486. In these cases it is held that a defendant must make timely objection when relying upon the insufficiency of the indictment or information; that our procedure in criminal cases is statutory; that the time for raising such objections is before plea; that courts will not entertain an objection to the introduction of testimony, or pass upon the legal sufficiency of the pleadings, after a plea of not guilty has been entered or while it is pending. As we read the record, we are not called upon to decide whether appellant waived his right to object because of his failure to demur to the information, for the same statute which fixes the time for demurrer gives the accused the right to raise the same question by motion in arrest of judgment. This appellant did. The right to move in arrest of judgment in such cases is admitted in the Blanchard Case. Section 2183, Rem. & Bal. Code, provides that, a judgment may be arrested on motion of the defendant for the following causes: '* * * 2. That the facts as stated in the indictment or information do not constitute a crime or misdemeanor.' In State v. Feamster, 12 Wash. 461, 41 P. 52, this court held, notwithstanding the fact that the defendant had gone through two trials of his case without objecting to the sufficiency of the information, by demurrer or otherwise, that the objection was still available to him under this statute.

Whether the information states a cause of action is a more difficult question. Appellant relies upon the case of State v Heath, 57 Wash. 246, 106 P. 756, while the state relies upon the case of State v. Baker, 69 Wash. 589, 125 P. 1016. The Heath Case involved an inquiry as to the sufficiency of an information charging an assault. The Baker Case, the sufficiency of an information charging an attempt to commit a robbery. Whether the word 'attempt' as used in an information implies a physical act recognized or defined as a crime, or whether the acts constituting the attempt must be set out in every case, are not necessarily pertinent to our present inquiry. In this case, no facts constituting the attempt are set out. This distinguishes this case from the Baker Case, where the court held, notwithstanding some general espressions in the opinion, that the information charged the defendant with attempting to do the precise things which are recited in the statute a constituting the crime of robbery, and implied an assault, a physical act. Moreover, it was there charged that the defendant 'did unlawfully, feloniously, wrongfully, and with force and violence, attempt to take from the person,' etc. This was held to be a sufficient charge of an over act. But it is our understanding of the law that the word 'attempt' does not necessarily imply a physical act. An...