State v. Jeske, 43831

• Citation: 558 P.2d 162,87 Wn.2d 760
• Decision Date: 24 November 1976
• Docket Number: No. 43831,43831
• Parties: The STATE of Washington, Respondent, v. Jack Harold JESKE, Petitioner.
• Court: Washington Supreme Court

Page 760

87 Wn.2d 760

558 P.2d 162

The STATE of Washington, Respondent, v. Jack Harold JESKE, Petitioner.

No. 43831.

Supreme Court of Washington, En Banc.

Nov. 24, 1976.

Rehearing Denied Jan. 7, 1977.

Perry J. Robinson, Yakima, for petitioner.

Jeffrey C. Sullivan, Pros. Atty., J. Eric Gustafson, Deputy Pros. Atty., Yakima, for respondent.

ROSELLINI, Associate Justice.

The petitioner was charged with a violation of RCW 74.08.331, the information alleging that he had obtained money from the Department of Public Assistance by 'knowingly, willfully and feloniously by means of a willfully false statement or representation or a willful failure to reveal any material fact, condition or circumstances affecting eligibility of (or) need for assistance.' The information did not include the words 'as required by law' which, in the statute, follow the words 'failure to reveal any material fact, condition or circumstance affecting eligibility of (or) need for assistance, including medical care, surplus commodities and food stamps.'

The prosecutor's evidence showed that the petitioner received food stamps rather than money; and upon his motion, acquiesced in by the petitioner, the information was amended to conform to the proof.

The evidence showed that from January through May 1972, the petitioner had received approximately $6,512 from the Department of Labor and Industries as time loss compensation; that he and his wife maintained a joint savings account of $4,000 or more from August 1971 to June 1972, and that petitioner's wife had received income from asparagus crops grown on their property amounting to approximately $3,800. The petitioner's testimony was that he had advised the Department of Public Assistance of all money received. The State's witnesses and exhibits contradicted this testimony.

The jury was instructed that, under a regulation adopted by the Department of Public Assistance, income and resources of a recipient are material facts, conditions and circumstances which affect eligibility of (or) need for assistance. It was told that a 'recipient' is a person receiving public assistance, including food stamps, or currently approved to receive public assistance at any future date; and that the term 'resource' means any asset, tangible or intangible, which can be applied toward meeting a recipient's need. It was further instructed that by a regulation adopted by the Department of Public Assistance, an applicant may not have nonexempt resources in excess of $1,500 for his household and that resources include cash on hand or in bank accounts and nonrecurring lump sum payments. Exempt resources, it was told, include a home and lot, automobile, personal effects and household goods and income-producing property.

The jury was instructed in the words of RCW 74.08.331 as follows:

A statute of the State of Washington provides that:

Any person who by means of a willfully false statement or representation, or impersonation, or a willful failure to reveal any material fact, condition or circumstance(s) affecting eligibility of need for assistance, . . . including food stamps, . . . as required by law, . . . obtains or attempts to obtain . . . any public assistance to which he is not entitled or greater public assistance than that to which he is justly entitled shall be guilty of grand larceny . . .

This is a felony under the laws of the State of Washington.

Instruction No. 13.

There was a further instruction that by a regulation adopted by the Department of Public Assistance, a recipient has the responsibility to report all changes in circumstances which affect his continuing eligibility for assistance within 30 days of the change in circumstances.

The jury returned a verdict of guilty which was affirmed by the Court of Appeals. (State v. Jeske, 13 Wash.App. 118, 533 P.2d 859 (1975).) The petitioner asked this court to review the opinion of the Court of Appeals, contending that it was in confict with State v. Walters, 8 Wash.App. 706, 508 P.2d 1390 (1973), decided by Division Two of the Court of Appeals, insofar as it held that the failure to include in the information the words 'required by law' did not render that pleading fatally defective. The petition was granted.

It is the contention of petitioner's counsel that he was misled by the omission of the statutory language 'as required by law.' He does not suggest that the petitioner was unaware that he was required to report his income and resources under state law. These facts are required to be revealed under RCW 74.04.300. Rather, counsel declares that the words 'as required by law,' had they been included, would have alerted him to the possibility that the particular items of income did not affect the petitioner's eligibility under the applicable federal law.

In support of his contention that the sums of money which he and members of his household received were not required by law to be reported, the petitioner cites 7 C.F.R. § 271.3 (1971). The only provisions of the regulations which he cites are 7 C.F.R. § 271.3(c)(1)(ii)(e), excluding insurance settlements and other similar lump sum payments from the definition of income for purposes of determining eligibility for food stamps, and 7 C.F.R. § 271.3(c)(4)(iii)(b), which excludes income-producing properties from the definition of 'resources.' It is not shown how the sums which were received in his household fit within either of these categories.

Income is defined in 7 C.F.R. § 271.3(c)(1)(i)(b) as 'net income from self-employment, which shall be the total gross income from such enterprise . . . less the cost of producing that income.' Another section 7 C.F.R. § 271.3(c)(2)(ii), expressly refers to farming as employment. Thus, it would appear that the income from the asparagus crops affected eligibility under the regulations. Furthermore, section 271.3(c)(4)(i) provides that the maximum allowable resources of all members of the household shall not exceed $1,500, and under subparagraph (ii)(a) of this paragraph, 'resources' include liquid resources which are readily negotiable. The sums of money received by the petitioner and his household, whether or not they were defined as income, would fall within this definition, and affect eligibility. Upon this question, see Anderson v. Morris, Wash., 558 P.2d 155 (1976).

7 C.F.R. § 271.3(a)(1) requires the cooperation of a recipient in providing information necessary for making a determination of eligibility.

Under 7 U.S.C. § 2014 (1971), the Secretary of Agriculture in consultation with the Secretary of Health, Education, and Welfare, is directed to establish uniform national standards of eligibility for participation in the food stamp program, and participating states are required to meet these standards. Our examination of the regulations promulgated pursuant to the authority conferred in this statute discloses no inconsistency with the law of this state as given to the jury in the instructions of the court in this case. ¹ It is therefore obvious that the fact that the information, as worded, did not alert counsel to the possible applicable federal law, did not prejudice his client's defense.

There remains the question whether the omission of the words ...