State v. Gipson

• Decision Date: 29 August 1916
• Docket Number: 13436.
• Citation: 159 P. 792,92 Wash. 646
• Parties: STATE v. GIPSON.
• Court: Washington Supreme Court

159 P. 792

92 Wash. 646

STATE v. GIPSON.

No. 13436.

Supreme Court of Washington

August 29, 1916

Department 2. Appeal from Superior Court, Franklin County; Bert Linn Judge.

Forest D. Gipson was convicted of an offense, and from an order granting a new trial, the State appeals. Reversed, with instructions.

A. J Elrod, of Pasco, for the State.

Edward A. Davis, of Pasco, and E. M. Gibbons, of Ritzville, for respondent.

HOLCOMB J.

Respondent was convicted upon the following information:

'That the said Forest D. Gipson, in the county of Franklin, state of Washington, on the 1st day of April, 1915 did then and there unlawfully and feloniously being the father of three children, to wit, a girl 10 years old named Opal, a girl 9 years old named Jennie, and a girl 4 1/2 years old named Angeline, dependent upon him for care, education, and support, desert his said children, with the intention of abandoning them, and did willfully omit, without lawful excuse, to furnish his said children with necessary food, clothing, shelter, and medical attendance,' etc.

A new trial was granted upon motion of respondent, on the ground that the information was deplicitous in charging two separate offenses. The statute denouncing the offense or offenses is section 5933-1, 3 Rem. & Bal. Code, being section 1, c. 28, Laws 1913, p. 71, and is as follows:

' Family Desertion. An act concerning domestic relations and to prevent and punish family desertion or nonsupport of wife or child or children, and providing for support bonds and suspension of trial and sentence. * * *

'Be it enacted by the Legislature of the state of Washington:

'Section 1. Every person who,

'1st: Having any child under the age of 16 years dependent upon him or her for care, education or support, deserts such child in any manner whatever, with intent to abandon it;

'2nd: Willfully omits, without lawful excuse, to furnish necessary food, clothing, shelter, or medical attendance for his or her child or children or ward or wards; * * *

'Shall be guilty of a gross misdemeanor.'

The third subdivision prohibits neglect or abandonment or failure to support and provide for a wife.

It will be seen that the information in this case follows the statute covering the first and second alternative subdivisions thereof. It is for this reason that the respondent contended and the trial court thought that two counts were charged in the information. At first we inclined to the belief that the theory of the trial court and of the respondent was correct, but upon further and more mature consideration we are of the opinion that that view cannot be sustained.

'When the statute enumerates several acts in the alternative, the doing of any one 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.' 10 Enc. Pl. & Pr. 536; State v. Adams, 41 Wash. 552, 83 P. 1108; Fahnestock v. State, 102 Ind. 156, 1 N.E. 372.

In the last-cited case it was 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 count as constituting a single offense.'

In People v. Gusti, 113 Cal. 177, 45 P. 263, the court said:

'Of course, an indictment or information must charge but one offense (Pen. Code, § 954), and if it charges more than one, it is subject to demurrer upon that ground. The question then is, Did the information here charge two offenses? We do not think it did. It is a well-settled rule of law that 'When a statute enunciates a series of acts, either of which separately or all together may constitute the offense, all of such acts may be charged in a single count, for the reason that notwithstanding each act may, by itself, constitute the offense, all of them together do no more, and likewise constitute but one and the same offense.'' See, also, State v. Newton, 29

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