State v. Hurd

• Decision Date: 03 September 1940
• Docket Number: 28002.
• Parties: STATE v. HURD.
• Court: Washington Supreme Court

105 P.2d 59

5 Wn.2d 308

STATE v. HURD.

No. 28002.

Supreme Court of Washington

September 3, 1940

Department 2.

C. F Hurd was convicted of operating a motor vehicle while under the influence of, or affected by, intoxicating liquor, and he appeals.

Affirmed.

Appeal from Superior Court, Pierce County; F. G Remann, judge.

Robert B. Abel, of Tacoma, for appellant.

Thor C Tollefson and Hugo Metzler, Jr., both of Tacoma, for respondent.

STEINERT Justice.

Upon a trial Before a jury, defendant was convicted of the crime of operating a motor vehicle 'while under the influence of, or affected by, intoxicating liquor,' and from the judgment of conviction he now appeals.

The facts material to the questions raised upon the appeal are as follows: On January 3, 1939, an information was filed, charging appellant with the crime of operating a motor vehicle ' while under the influence of intoxicating liquor.' Appellant was arraigned on that charge, and pleaded 'not guilty.' After a mistrial in November, 1939, the trial court, on February 10, 1940, granted respondent's motion (which had been served on appellant's counsel on February 7), for the amendment of the information to read, in part, 'while under the influence of or affected by intoxicating liquor.' The only change effected by the amendment was the addition of the words 'or affected by,' following the phrase 'under the influence of.' The amended information was filed on February 10, 1940, but, apparently through some oversight, it was not verified. The purpose of the amendment, according to a statement made at that time by the prosecuting attorney, was to have the information conform to the language of the pertinent statute, Rem.Rev.Stat. § 6360-119. Appellant was not arraigned, however, on the amended charge, nor did he plead thereto.

February 10, 1940, the day on which the motion for amendment of the information was granted, fell on a Saturday. The following Monday, February 12, was a legal holiday. On Tuesday, February 13, the case was called for trial.

In his opening statement to the jury, the prosecuting attorney read the unverified, amended information. At the conclusion of the opening statement, appellant's counsel objected to 'further proceedings,' and to 'the introduction of any testimony herein upon the ground and for the reason that the defendant [appellant] C. F. Hurd has not been arraigned to the amended information.' No objection, however, was assigned upon the ground that the amended information had not been verified. The record does not show whether or not appellant knew at that time that the information, as amended, was irregular in that particular respect.

In answer to counsel's objection, the trial court suggested that appellant be then arraigned upon the amended information, and that he make his plea at that time. The prosecuting attorney expressed his willingness to adopt the court's suggestion, but at the same time stated that in his opinion that step was unnecessary because the amendment was only as to form. Appellant's counsel, however, took the position that the amendment was one of substance and concerned a vital issue, and he therefore demanded that if the suggestion were followed appellant be accorded the right granted by Rem.Rev.Stat. § 2098, to have one day after arraignment in which to make his plea. The trial court then suggested, as a safer course, that the amendment be stricken, and that the trial proceed on the original information. The prosecuting attorney expressed his willingness to proceed in that manner also, but iterated his contention that the amendment was merely one of form and not of substance. Appellant's counsel, however, again objected, upon the ground that such procedure would be irregular and would be prejudicial to his client. The trial court thereupon laconically announced that it would stand upon the amended information, and accordingly overruled appellant's objection to further proceedings. The trial was then resumed, without further arraignment of appellant, and resulted in his conviction.

Following the recording of the verdict, appellant moved for arrest of judgment upon the ground of his original objection that he had never been arraigned upon the amended information, and upon the further ground, then asserted for the first time, that the amended information had never been verified.

Upon the appeal, two questions are presented for decision: (1) whether or not, under the facts, it was necessary that appellant be arraigned upon the amended information, and (2) whether or not the failure to verify the amended information constituted a fatal defect so far as all subsequent proceedings were concerned.

It is well settled that a substantial amendment of an information requires that the accused be arraigned on the amended information. State v. Van Cleve, 5 Wash. 642, 32 P. 461; State v. Hamshaw, 61 Wash. 390, 112 P. 379; Bohannan v. State, 11 Okl.Cr. 69, 142 P. 1092; People v. Clement, 4 Cal.Unrep. 493, 35 P. 1022; Annotation, 58 L.Ed. 772; 14 Am.Jur. 941, § 253.

Where, however, the amendment is merely one of form, and not of substance, no rearraignment is necessary. White v. People, 79 Colo. 261, 245 P. 349; State v. Bugg, 66 Kan. 668, 72 P. 236; People v. O'Hara, 278 Mich. 281, 270 N.W. 298; State v. Speyer, 194 Mo. 459, 91 S.W. 1075; Potter v. State, 47 Okl.Cr. 254, 288 P. 362; Hammons v. State, 47 Okl.Cr. 297, 287 P. 1076; Annotation, 58 L.Ed. 772; 16 C.J. 389, § 713.

Whether or not appellant was entitled to rearraignment thus depends upon whether the amendment was one of form or one of substance. Appellant contends that the amendment was one of substance for two reasons.

The first reason assigned is that the original information was based on Laws of 1927, chapter 309, p. 811, § 51 (Rem.Rev.Stat. § 6362-51), while the amended information was based on Laws of 1937, chapter 189, p. 910, § 119 (Rem.Rev.Stat. § 6360-119), which provides for an increased penalty. The crime with which appellant was charged in this case was alleged to have been committed on January 2, 1939, and the original information, it will be recalled, was filed on January 3, 1939, which was after the passage of the 1937 statute.

A reading of these two statutes makes it too clear to require discussion that the 1937 statute superseded the 1927 statute. Hence, the original information and the amended information did not have the effect of charging appellant with violation of separate and distinct statutes. In each information, he was charged with violation of the only statute in force since 1937 relative to operation of a motor vehicle while under the influence of intoxicating liquor. The amendment involved no change of statutory basis.

As a second reason for his contention that the amendment was one of substance, appellant asserts that the phrase 'affected by the use of intoxicating liquor' has a far broader meaning than the phrase 'under the influence of intoxicating liquor.' His argument is that one may be affected by intoxicating liquor and yet not be under the influence thereof; that although appellant may have been affected to a degree by the 'two or three highballs' which he admitted having taken Before dinner on the day in question, it does not follow that he was under the influence of liquor later in the evening, at the time of the occurrence of the accident which led to the filing of the charge here involved. The argument is plausible, but as applied to the statute under consideration we do not think that it is legally sound.

Webster's New International Dictionary, 2d Ed., 1934, defines the verb 'influence' as follows: 'To exert influence upon; specif.: a. To alter or move in respect to character, conduct, or the like; to sway; persuade; affect; as, to influence a person for good; b. To affect; to have an effect on the condition or development of; to modify or determine; as temperature influences flora and fauna.' (Italics substituted.)

The same authority gives the following definition of the verb 'affect': 'To lay hold of or attack (as a disease does); to act, or produce an effect upon; to impress or influence (the mind or feelings); to touch.' (Italics supplied.)

Listed as synonyms of 'affect', in the latter dictionary, are ' influence, operate, act on, concern; move, melt, soften.' (Italics supplied.)

Funk & Wagnalls New Standard Dictionary (1929) defines the verb 'influence' in much the same terms, as follows: '1. To affect, modify, or act upon physically, especially in some gentle, subtle, or gradual way; as, the brain influences the mind. 2. To exert or maintain a mental or moral power upon or over; affect or sway by motives, as the feelings or conduct * * *' (italics substituted) and the verb 'affect' as: 'To have an effect upon; act upon; lay hold of; impress; influence; change; as, worry affects the mind; opiates affect the brain. 2. To act upon the emotions or sensibilities of; touch; move, as the audience was deeply affected; 3. To lay hold of; act upon contagiously, as a part of the body; attack * * *.' (Italics substituted.)

The two words, 'influence' and 'affect', thus appear to be interchangeable and synonymous.

Legal authorities, so far as we have been able to find, also agree that the two words in question are used interchangeably.

Bouvier's Law Dictionary, Volume 1, Rawle's Third Revision, p. 158 defines 'affect' in the following language: 'To lay hold of, to act upon, impress or influence. It is often...