State v. Gifford

• Decision Date: 14 June 1898
• Citation: 19 Wash. 464,53 P. 709
• Parties: STATE v. GIFFORD.
• Court: Washington Supreme Court

53 P. 709

19 Wash. 464

STATE v. GIFFORD.

Supreme Court of Washington

June 14, 1898

Appeal from superior court, Spokane county; Thomas H. Brents, Judge.

Elmer Gifford was convicted of rape, and he appeals. Reversed.

Del Cary Smith and Fenton & O'Brien, for appellant.

John R Pierce, Pros. Atty., for the State.

DUNBAR J.

An information was filed by the prosecuting attorney of Spokane county against the appellant, charging him with the crime of rape. Upon trial of the cause, the defendant was found guilty as charged in the information, and was sentenced to the penitentiary for life.

A motion was made to quash the information for the reason that the state was not entitled to prosecute the appellant herein by information. We have decided this question adversely to appellant's contention so often that we decline to enter into its investigation again.

A demurrer was also interposed to the information; appellant contending that it is not direct and certain as regards either the party charged, the crime charged, or the particular circumstances of the crime charged, and that the information did not inform the appellant of the nature and cause of the accusation against him. The material part of the information is as follows: "Elmer Gifford is hereby charged with a public offense, to wit, the crime of rape committed as follows, to wit: That on the 7th day of July, A. D. 1897, and within three years next before the filing of this information, at the county of Spokane and state of Washington, the said defendant, Elmer Gifford, then and there in the said county and state being, then and there unlawfully and feloniously did carnally known one Flossie Fuller; the said Flossie Fuller then and there being a female child under the age of eighteen years, and not the wife of the said Elmer Gifford,-contrary to the statute," etc. We hardly see how the information could have been more definite and certain in regard to the crime charged or the party charged, or the particular circumstances of the crime charged; and, that being true, we think the information informed the appellant of the nature and cause of the accusation against him, and that the demurrer was therefore properly overruled. The testimony, however, showed that the appellant was an accessory before the fact to the crime of rape. Testimony was introduced to show that he acted as a procurer; that he sent men to the rooms of the prosecuting witness, and aided and abetted them in committing the crime charged, upon her. Timely objections were made to the introduction of this testimony; the appellant contending that he had no notice of the actual crime which was proven against him. But the court overruled the objections to the testimony on the strength of a decision of this court (viz. State v. Duncan, 7 Wash. 336, 35 P. 117), the testimony was admitted, and it was upon this character of testimony that the appellant was convicted. It was held by this court in State v. Duncan, supra,-which was a larceny case,-that, under the statute abrogating the distinction between an accessory before the fact and a principal, it was sufficient to charge the principal offense, and that testimony could be rightfully admitted, under such an indictment, showing that the defendant was an accessory before the fact. Upon more mature consideration, we think that case ought to be overruled; and in any event, it seems that it would be an inconsistent rule to apply to the case at bar. The indictment in this case charges the offense of rape. Not only that, but it sets forth how the crime was committed, viz. by having carnal knowledge of Flossie Fuller. The constitution, in section 22 of article 1, which is the declaration of rights, provides that in criminal prosecutions the accused shall have a right to demand the nature and cause of the accusation against him. Surely, in this case, and under...