State v. Howard, 22067.

• Decision Date: 28 May 1930
• Docket Number: 22067.
• Citation: 157 Wash. 183,288 P. 236
• Parties: STATE v. HOWARD.
• Court: Washington Supreme Court

288 P. 236

157 Wash. 183

STATE v. HOWARD.

No. 22067.

Supreme Court of Washington

May 28, 1930

Department 2.

Appeal from Superior Court, Whitman County; R. L. McCroskey, Judge.

Harvey Howard was convicted of having intoxicating liquor in his possession, and he appeals.

Reversed.

O. H Horton, of Colfax, for appellant.

W. L La Follette, Jr., and S. R. Clegg, both of Colfax, for the State.

FRENCH J.

By an information filed by the prosecuting attorney of Whitman county, the defendant was charged in count I with the crime of being a jointist. By count II the defendant was charged with having intoxicating liquor in his possession with intent to sell. Certain other allegations were contained in the information concerning previous convictions for violations of the liquor law which it is not now necessary to notice. The cause was tried to the court with a jury, and the following verdict returned:

'Count I

'We, the jury in the above entitled cause, do find the defendant not guilty of the crime of being a jointist, as charged in Court I of the information in said cause.

'Count II

'We, the jury in the above entitled cause do find the defendant guilty of the crime of wilfully having intoxicating liquor in his possession, under Count II of the information in said cause.'

Thereafter defendant moved in arrest of judgment, which motion was as follows:

'Comes now the above named defendant by his attorney, O. H. Horton, and moves the court that judgment be arrested on the verdict of the jury, finding the defendant guilty of having intoxicating liquor in his possession, and objects to a judgment of guilty being entered thereon, for the following reason, to-wit:

'That Count II of the information does not state facts sufficient to constitute the crime of having intoxicating liquor in possession.'

The trial court overruled the motion in arrest of judgment, the defendant was sentenced, and this appeal follows.

Count II of the information reads as follows:

'And the said Deputy Prosecuting Attorney, as aforesaid, further charges the said defendant, Harvey Howard, with the crime of having and keeping intoxicating liquor with intent to sell the same, committed as follows:

'That the said defendant, Harvey Howard, in Whitman County, State of Washington, on or about the 20th day of March, 1929, then and there being, did then and there, wilfully and unlawfully keep and have in his possession intoxicating liquor with intent then and there to unlawfully sell, barter and exchange the same, contrary to the statute in such cases made and provided and against the peace and dignity of the State of Washington. * * *'

It is contended by the prosecutor on behalf of the state that the motion in arrest of judgment was not timely made. The trial court overruled the state's motion to strike from the record, and passed upon the merits of the motion in arrest of judgment. The record showing as it does that the trial court considered the motion, and refused to strike it from the record, and there being no appeal by the state from such ruling, this court will not now review the action of the trial court in that particular.

On the merits the sole question presented is whether or not count II of the information above quoted states facts sufficient to charge the defendant with the crime of having intoxicating liquor in his possession. The law is so well settled as to require no citation of authority that, where a defendant is charged with a crime, he may be convicted of a lesser offense necessarily included therein. But the rule also is qualified as follows: Where one is indicted for a higher offense, he may be convicted of an included offense only where the allegations of the information are sufficient to charge the lower. 1 Bishop on Criminal Law (9th Ed.) § 794, and cases cited; Jones v. State, 100 Ark. 195, 139 S.W. 1126; State v. Miller, 124 Iowa, 429, 100 N.W. 334; House et al. v. State, 186 Ind. 593, 117 N.E. 647.

'While it is not necessary to make a specific charge of all the offenses included in the charge for which the indictment is drawn, a conviction cannot be had of a crime as included in the offense specifically charged unless the indictment in describing the major offense contains all the essential averments of the less, or the greater offense necessarily includes all the essential ingredients of the less. * * *' 31 C.J. § 485, p. 856.

This rule is followed in our own court: State v. Ackles, 8 Wash. 462, 36 P. 597, which case has been cited with approval in State v. Young, 22 Wash. 273, 60 P. 650, and State v. Romano, 41 Wash. 241, 83 P. 1.

Count II of the information in this case, as quoted above, is drawn under chapter 98, Session Laws of 1927, which reads: 'Section 4. It shall be unlawful for any person to manufacture, sell, barter, exchange, give away, furnish or otherwise dispose of any intoxicating liquor, or to keep any intoxicating liquor, with intent to sell, barter, exchange, give away, furnish or otherwise dispose of the same, except as in this act provided.'

We have uniformly held that an information in the language of the statute is sufficient if the statute defines the crime, and in State v. Powers, 149 Wash. 509, 271 P. 584, 274 P. 192, we held that an information practically identical with this information sufficiently charged the crime of possession with intent to sell. This defendant, however, was...