State v. Hilstad

• Decision Date: 31 July 1928
• Docket Number: 20902.
• Citation: 269 P. 844,148 Wash. 468
• Parties: STATE v. HILSTAD.
• Court: Washington Supreme Court

269 P. 844

148 Wash. 468

STATE v. HILSTAD.

No. 20902.

Supreme Court of Washington, En Banc.

July 31, 1928

Appeal from Superior Court, Kitsap County; H. G. Sutton, Judge.

Peter G. Hilstad was convicted of possession and sale of intoxicating liquor, and he appeals. Affirmed.

French and Mitchell, JJ., dissenting.

Marion Garland, of Bremerton, for appellant.

James W. Bryan, of Bremerton, for the State.

TOLMAN J.

The defendant was charged by an information filed in the superior court with various offenses against the Prohibition Law (27 USCA). The information contained five counts. Count 1 charged possession and the sale of intoxicating liquor to one W. upon a certain date; count 2 charged possession and the sale of intoxicating liquor to the same person upon a different and subsequent date; count 3 charged possession and the sale of intoxicating liquor to one T. on still another date; count 4 charged possession and the sale of intoxicating liquor to one C. on still another and different date; and count 5 charged the defendant in appropriate language with opening up and maintaining a joint at a certain designated place.

By appropriate proceedings in the trial court, the defendant raised objections to the information on a number of grounds, and particularly questioned the right of the state to include felonies and misdemeanors by separate counts in the same information, where nothing was alleged to indicate that the several offenses arose out of the same transaction or that the acts charged were in any way connected together.

The trial court ruled against the defendant on these various matters, and a trial was had to a jury upon all of the counts resulting in a verdict of guilty on counts 3 and 4. From a judgment and sentence on the verdict, the defendant has appealed.

While the verdict of guilty was upon counts charging misdemeanors only, and the appellant was not found guilty on the felony charge, yet the inclusion of that charge, it is contended was erroneous and prejudicial, and, unless our statute permits the joinder of felonies and misdemeanors by separate counts in the same information in such a case as this, the point would seem to be well taken. Our statute reads:

'When there are several charges against any person, or persons, for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses which may be properly joined, instead of having several indictments or informations, the whole may be joined in one indictment, or information, in separate counts; and, if two or more indictments are found, or two or more informations filed, in such cases, the court may order such indictments or informations to be consolidated.' Chapter 109, Laws 1925.

This statute was construed in State v. Brunn, the departmental opinion appearing in 144 Wash. 341, 258 P. 13, and upon rehearing the case was heard en banc, and the later decision is reported in 145 Wash. 435, 260 P. 990. In the first Brunn Case it was pointed out that the statute covers three possible contingencies: First, the joinder of several charges growing out of the one act or transaction; second, two or more acts or transactions connected together; and, third, two or more acts or transactions of the same class of crimes which may be properly joined. We find nothing in the information here justifying a holding that the joinder here complained of was made under either the first or the second provisions of the statute, and from its wording we must hold that the information was intended to comply with the third ground of the statute; namely, the joinder of two or more acts or transactions of the same class of crimes.

The Brunn Case, supra, seems to cover every question which was or might have been raised here with reference to the statute, save only the joinder of felonies and misdemeanors not arising out of the same act or transaction and not connected together. As there indicated, the statute being practically identical with the federal statute, we must look primarily for a federal interpretation.

We, perforce, disregard the many authorities which hold that separate counts charging misdemeanors and felonies may be joined where the charges grow out of the same act or are connected together, and the only case brought to our attention which in any wise meets the present situation is United States v. Mullen (D. C.) 7 F. (2d) 244, which was a prosecution under the Federal Prohibition Act (27 USCA). That act itself provides that separate offenses against the act may be joined in separate counts and all tried together. The court there said:

'While under the technical definitions of misdemeanors and felonies under the Criminal Code (35 Stat. 1088 [18 USCA]) the first offense is a misdemeanor and the second offense is a felony, yet, even if there were no special authority for joining different offenses in separate counts under section 32 [27 USCA § 49], I do not think that this distinction between misdemeanors and felonies, based entirely upon the amount of punishment, makes the offenses or acts different classes of crimes or offenses, as referred to in R. S. § 1024 [18 USCA § 557], where it is provided that several charges for two or more acts or transactions of the same class of crimes or offenses may be properly joined in separate counts. The distinction between misdemeanors and felonies at common law and in the United States at the time of the adoption of section 1024 was entirely different from that distinction as it exists under the Code, which makes the amount of punishment alone the distinguishing line of demarcation between misdemeanors and felonies.

'One sale of intoxicating liquor contrary to law is certainly the same class of crime as another sale of intoxicating liquor, though for the first offense the punishment may be such as to make the crime a misdemeanor, and for the second offense a felony.

'One offense of possessing liquor contrary to law is, I think, the same class of offense as a sale of liquor contrary to law, and they may be charged in separate counts of the same indictment, though in the case of the one offense it may be a first offense and a misdemeanor, and in the case of the other offense it may be a second offense and a felony--the distinguishing line of demarcation being only the amount of punishment. 'For these reasons, and, even if we are controlled by R. S. § 1024, instead of section 32 of the act, first and second offenses against the same act, though one may be a misdemeanor and the other a felony, can be charged in separate counts of the same indictment.'

While this case may lack something of being an authority here by reason of the provisions of the National Prohibition Act permitting such joinder, it is yet somewhat persuasive. We find no other authority bearing on the subject, but our own reasoning brings the same result, as will hereinafter appear.

The principal argument advanced by the appellant is that our previous statute classifies crimes as felonies, gross misdemeanors, and misdemeanors (chapter 249, Laws 1909), and that therefore, when the Legislature of 1925 spoke of classes of crime, it must have meant the statutory classification theretofore existing. We think the act of 1925 itself negatives that thought. If it had been intended that all felonies might be joined in one information by separate counts, all gross misdemeanors likewise joined in another, and all misdemeanors so joined in another, then provisions 1 and 2 of the act are meaningless, wholly useless, and serve no purpose whatsoever. The whole act must be looked to for the purpose of ascertaining the legislative intent, and, when that is done, it is apparent that the words, 'the same class of crimes or offenses,' cannot mean the previously existing statutory classification, but rather that the legislative meaning was crimes of the same character or nature. There is reason and logic in the law thus construed, because, the nature of the several acts being the same, there would be less or no prejudice to the person charged in joining them in a single trial; whereas, if the previous statutory classification was intended to govern, a defendant might find himself compelled at one and the same time, and before the same jury, to defend against a number of charges each radically different from the other and each involving acts and motives entirely foreign to every other. We conclude that the several charges of offenses against our liquor laws here involved, though one was a felony and the other misdemeanors, were of the same general nature, and were properly joined under the statute.

The judgment is affirmed.

FULLERTON, C.J., and ASKREN, MAIN, PARKER, and HOLCOMB, JJ., concur.

BEALS J. (concurring).

In addition to the reasons stated in the majority opinion for affirming the judgment, in which opinion I concur, I desire to add the following, which, it seems to me, constitutes further ground for affirmance:

Section 2059, Rem. Comp. Stat., as amended by chapter 109, Laws of 1925, quoted in both the majority and minority opinions establishes three groups of charges which may be joined in one indictment or information: First, 'when there are...